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STATE  NOKMAL  SCHOOL, 


CRIMINAL  SOCIOLOGY 


*-<., 


CRIMINAL    SOCIOLOGY 


IlOS  A^LOStJUCS,  6AU. 


BY 

ENRICO   FERRl 

PROFESSOR   OF   CRIMINAL   LAW 
DEPUTY   IN   THE   ITALIAN   PARLIAMENT,    ETC. 


//  2  3<^ 


NEW    YORK 
D.    APPLETON    AND    COMPANY 

1900 


Authorized  Edition. 


PREFACE. 


The  following  pages  are  a  translation  of  that  portion 
of  Professor  Ferri's  volume  on  Criminal  Sociology 
which  is  immediately  concerned  with  the  practical 
problems  of  criminality.  The  Report  of  the  Govern- 
ment committee  appointed  to  inquire  into  the  treat- 
ment of  habitual  drunkards,  the  Report  of  the 
committee  of  inquiry  into  the  best  means  of  identi- 
fying habitual  criminals,  the  revision  of  the  English 
criminal  returns,  the  Reports  of  committees  ap- 
pointed to  inquire  into  the  administration  of  prisons 
and  the  best  methods  of  dealing  with  habitual 
offenders,  vagrants,  beggars,  inebriate  and  juvenile 
delinquents,  are  all  evidence  of  the  fact  that  tht 
formidable  problem  of  crime  is  again  pressing  its 
way  to  the  front  and  demanding  re-examination 
at  the  hands  of  the  present  generation.  The  real 
dimensions  of  the  question,  as  Professor  Ferri  points 
out,  are  partially  hidden  by  the  superficial  interpre- 
tations which  are  so  often  placed  upon  the  returns 
relating  to  crime.  If  the  population  of  prisons  or 
penitentiaries  should  happen  to  be  declining,  this 
is   immediately  interpreted   to   mean    that   crime   is 


VI  PREFACE. 

on  the  decrease.  And  yet  a  cursory  examination 
of  the  facts  is  sufficient  to  show  that  a  decrease 
in  the  prison  population  is  merely  the  result  of 
shorter  sentences  and  the  substitution  of  fines  or 
other  similar  penalties  for  imprisonment.  If  the 
list  of  offences  for  trial  before  a  judge  and 
jury  should  exhibit  any  symptoms  of  diminution, 
this  circumstance  is  immediately  seized  upon  as  a 
proof  that  the  criminal  population  is  declining,  and 
yet  the  diminution  may  merely  arise  from  the  fact 
that  large  numbers  of  cases  which  used  to  be  tried 
before  a  jury  are  now  dealt  with  summarily  by  a 
magistrate.  In  other  words,  what  we  witness  is  a 
change  of  judicial  procedure,  but  not  necessarily  a 
decrease  of  crime.  Again,  when  it  is  pointed  out 
that  the  number  of  persons  for  trial  for  indictable 
offences  in  England  and  Wales  amounted  to  53,044 
/in  1874-8  and  56,472  in  1889-93,  we  are  at  a  loss 
Vto  see  what  colour  these  figures  give  to  the  state- 
ment that  there  has  been  a  real  and  substantial 
decrease  of  crime.  The  increase,  it  is  true,  may 
not  be  keeping  pace  with  the  growth  of  the  general 
population,  but,  as  an  eminent  judge  recently  stated 
from  the  bench,  this  is  to  be  accounted  for  by  the 
fact  that  the  public  is  every  year  becoming  more 
lenient  and  more  unwilling  to  prosecute.  But  an 
increase  of  leniency,  however  excellent  in  itself,  is 
not  to  be  confounded  with  a  decrease  of  crime.  In 
the  study  of  social  phenomena  our  paramount  duty 
is  to  look  at  facts  and  not  appearances. 

But  whether  criminality  is  keeping  pace  with  the 
growth  of  population  or  not  it  is  a  problem  of  great 


PREFACE.  Vll 

magnitude  all  the  same,  and  it  will  not  be  solved, 
as  Professor  Ferri  points  out,  by  a  mere  resort  to 
punishments  of  greater  rigour  and  severity.  On 
this  matter  he  is  at  one  with  the  Scotch  depart- 
mental committee  appointed  to  inquire  into  the 
best  means  of  dealing  with  habitual  offenders,  va- 
grants, and  juveniles.  As  far  as  the  suppression  of 
vagrancy  is  concerned  the  members  of  the  committee 
are  unanimously  of  opinion  that  "  the  severest  enact- 
ments of  the  general  law  are  futile,  and  that  the  best 
results  have  been  obtained  by  the  milder  provisions 
of  more  recent  statutes."  They  also  speak  of  the 
"  utter  inadequacy  of  the  present  system  in  all  the 
variety  of  detail  which  it  offers  to  deter  the  habitual 
offender  from  a  course  of  life  which  devolves  the 
cost  of  his  maintenance  on  the  prison  and  the  poor- 
house  when  he  is  not  preying  directly  on  the  public." 
The  committee  state  that  they  have  had  testimony 
from  a  large  number  of  witnesses  supporting  the 
view  that  "  long  sentences  of  imprisonment  effect  no 
good  result,"  and  they  arrive  at  the  conclusion  that 
to  double  the  present  sentences  would  not  diminish 
the  number  of  habitual  offenders.  In  this  conclusion 
they  are  at  one  with  the  views  of  the  Royal  Com- 
mission on  Penal  Servitude,  which  acquiesced  in 
the  objection  to  the  penal  servitude  system  on  the 
ground  that  it  "  not  only  fails  to  reform  offenders, 
but  in  the  case  of  the  less  hardened  criminals  and 
especially  first  offenders  produces  a  deteriorating 
effect."  A  similar  opinion  was  recently  expressed 
by  the  Prisons  Committee  presided  over  by  Mr. 
Herbert  Gladstone.     As  soon  as  punishment  reaches 


VUl  PREFACE. 

a  point  at  which  it  makes  men  worse  than  they 
were  before,  it  becomes  useless  as  an  instrument  of 
reformation  or  social  defence. 

The  proper  method  of  arriving  at  a  more  or  less 
satisfactory  solution   of  the   criminal   problem  is  to 
inquire   into   the   causes   which   are    producing    the 
criminal  population,  and  to  institute  remedies  based 
upon    the    results    of    such    an    inquiry.      Professor 
Ferri's  volume   has   this   object  in  view.     The  first 
chanter,  on  the  data  of  Criminal  Anthropology,  is 
an  inquiry  into  the  individual  conditions  which  tend 
to  produce  criminal  habits  of  mind  and  action.     The 
second   chapter,   on  the  data  of  criminal    statistics, 
is  an   examination  of  the   adverse  social  conditions 
which  tend  to  drive  certain  sections  of  the  popula- 
tion into  crime.     It  is  Professor   Ferri's   contention 
that   the   volume   of  crime    will    not   be    materially 
diminished   by  codes  of  criminal  law  however  skil- 
fully they  may  be  constructed,  but  by  an  ameliora- 
tion of  the  adverse  individual  and  social  conditions 
of  the  community  as  a  whole.     Crime  is  a  product 
of  these   adverse  conditions,  and  the  only  effective 
way  of  grappling  with  it  is  to  do  away  as  far  as 
possible  with  the  causes  from  which  it  springs.     Al- 
though  criminal   codes  can  do   comparatively  little 
towards  the  reduction  of  crime,  they  are  absolutely 
essential  for  the  protection  of  society.     Accordingly, 
the  last  chapter,  on  Practical  Reforms,  is  intended 
to  show  how  criminal  law  and  prison  administration 
mny  be  made  more  effective  for  purposes  of  social 

defence. 

W.  D.  M. 


CONTENTS. 


CHAPTER  I. 

VAcn 

The  Data  of  Criminal  Anthropology    .  ,        i 

Origin  of  Criminal  Sociology,  I — Origin  of  Criminal  Anthro- 
pology, 4 — Methods  of  Criminal  Anthropology,  4 — Relation 
between  Criminal  Anthropology  and  C/iminal  Sociology,  5 — 
Criminal  Anthropology  studies  the  organic  and  mental  con- 
stitution of  the  cripiinal,  7 — The  criminal  skull  and  brain,  7 
— Criminal  phj^ji^gnomy,  8 — Physical  insensibility  among 
criminals,  9-«2riminal  heredity,  9 — Ctiminal  psychology,  9 — 
Moral  insensibility  among  criminals,  10 — The  criminal  mind, 
10.  II.  The  data  of  criminal  anthropology  only  applies  to 
the  habitual  or  congenital  criminal,  11 — The  occasional  and 
habitual  criminal,  1 1 — Comparison  between  the  criminal  and 
non-criminal  skull,  12 — Anomalies  in  the  criminal  skull,  12 
— The  habitual  criminal,  13 — The  crimes  of  habitual  crimi- 
nals, 14 — The  criminal  tjrpe  confined  to  habitual  criminals, 
18 — The  proportion  of  habitual  criminals  in  the  criminal 
population,  i8 — Forms  of  habitual  criminality,  19 — Forms 
.  of  occasional  criminality,  21 — Classification  of  criminals,  23 
— Criminal  lunatics,  26 — Moral  insanity,  26to-B^^  criminals, 
28 — Criminals  by  acquired  habit,  30 — Criminal  precocity,  31 
— Nature  of  juvenile  crime,  32 — Relapsed  criminals,  35 — 
Precocity  and  relapse  among  criminals,  38 — Criminals  of 
passion,  39 — Occasional  criminals,  41 — Differences  between 

ix 


CONTENTS. 


the  occasional  and  the  bom  criminal,  41 — Criminal  types 
shade  into  each  other,  44 — Numbers  of  several  classes  of 
criminals,  46 — Value  of  a  proper  classification  of  criminals, 
47 — A  fourfold  classification,  48. 


CHAPTER  II. 
The  p5vTA  OF  Criminal  Statistics   .        *  '5' 


^alue  of  criminal  statistics,  51 — The  three  factors  of  crime, 
52 — Anthropological    factors,    Jj^Physical    factors,    53 — 

\3<raal  fectors,  53 — Crime  a  product  of  complex  conditions, 
54-^^^ial  conditions  do  not  explain  crime,  55 — Effects  of 
temperature  on  crime,  58 — Ccime  a  result  of  biological  as 
well  as  social  conditions,  59 — The  measures  to  be  taken 
aafinst  crime  are  of  two  kinds,  preventive  and  eliminative, 
^« — The  fluctuations  of  crime  chiefly  produced  by  social 
causes,  61 — Steadiness  of  the  graver  forms  of  crime,  63 — 
Effect  of  judicial  procedure  on  criminal  statistics,  64 — Crimes 
against  the  person  are  high  when  crimes  against  property  are 
low,  64 — Is  criare  increasing  or  decreasing?  64 — Official 
optimism  in  cniminal  statistics,  67 — Density  of  population 
and  crime,  73'^Conditions  on  which  the  fluctuations  of  crime 
depend,  77 — Quetelet's  law  of  the  mechanical  regularity  of 
crime,  80 — The  effect  of  environment  on  crime,  81 — The 
effect  of  punishment  on  crime,  82— The  value  of  punishment 
is  over-estimated,  82 — Statistical  proofs  of  this,  86 — Bio- 
logical and  sociological  proofs,  92 — ^^Crime  is  diminished  by 
prevention  not  by  repression,  96 — Legislators  and  adminis- 
trators rely  too  much  on  repression,  98 — The  basis  of  the 
belief  in  punishment,  99 — Natural  and  legal  punishment, 
103 — The  discipline  of  consequences,  104 — The  uncertainty 
of  legal  punishment,  105 — Want  of  foresight  among  criminals, 
105 — Penal  codes  cannot  alter  invincible  tendencies,  106 — 
Force  is  no  remedy,  107 — Negative  yalur'bf  punishment,  109. 
II.  Substitutes  for  punishment,  iioL-^he  elimination  of  the 
causes  of  crime,  113 — Economic  remedies  for  crime,  114 — 
Drink  and  crime,  116 — Drunkenness  an  effect  of  bad  social 
conditions,    120 — Taxation    of   drink,    120— Laws   against 


CONTENTS,  XI 


PAGB 


drink,  121 — Social  amelioration  a  substitute  for  penal  law, 
121 — Social  legislation  and  crime,  122 — Political  ameliora- 
tion as  a  preventive  of  crime,  124 — Decentralisation  a  pre- 
ventive, 126 — Legal  and  administrative  preventives,  128 — 
Prisoners'  Aid  Societies,  130 — Education  and  crime,  130— 
Popular  entertainments  and  crime,  131 — Physical  education 
as  a  remedy  for  crime,  131 — To  diminish  crime  its  causes 
must  be  eliminated,  132 — The  aim  and  scope  of  penal 
substitutes,  134 — Difficulty  of  applying  penal  substitutes, 
137 — Difference  between  social  and  police  prevention,  139— 
Limited  efficacy  of  punishment,  140 — Summary  of  con- 
clusions, 141. 


CHAPTER  III. 

Practical  Reforms  •  .  •  •    143 

Criminal  sociology  and  penal  legislation,  143 — Classification 
of  punishments,  144 — The  reform  of  criminal  procedure,  145 
— The  two  principles  of  judicial  procedure,  147 — Principles 
determining  the  nature  of  the  sentence,  147 — Present  prin- 
ciples of  penal  procedure  a  reaction  against  mediaeval  abuses, 
147 — The  "  presumption  of  innocence,"  148 — The  verdict  of 
•*  Not  Proven,"  149 — The  right  of  appeal,  151 — A  second 
trial,  151 — Reparation  to  the  victims  of  crime,  152 — Need  for 
a  Ministry  of  Justice,  153 — Public  and  private  prosecutors, 
154 — The  growing  tendency  to  drop  criminal  charges,  155 — 
The  tendency  to  minimise  the  official  returns  of  crime,  156 — 
Roman  penal  law,  156 — Revision  of  judicial  errors,  158 — 
Reparation  to  persons  wrongly  convicted,  158 — Provision  of 
funds  for  this  purpose,  160 — Reparation  to  persons  wrongly 
prosecuted,  161 — Many  criminal  offences  should  be  tried  as 
civil  offences,  162 — The  object  of  a  criminal  trial,  163.  II.  The 
crime  and  the  criminal,  164 — The  stages  of  a  criminal  trial, 
165 — The  evidence,  166 — Anthropological  evidence,  166 — 
The  utilisation  of  hypnotism,  168 — Psychological  and  psycho- 
pathological  evidence,  168 — The  credibility  of  witnesses,  168 
Expert  evidence,  169 — An  advocate  of  the  poor,  172 — The 
judge  and  his  qualifications,  172 — Civil  and  criminal  judges 


Xll  CONTENTS. 


should  be  distinct  functionaries,  173 — The  student  of  law 
should  study  criminals,  174 — Training  of  police  and  prison 
officers,  174 — The  status  of  the  criminal  judge,  175 — The 
authorityofthe  judge,  176.  III.  Thejury,  177 — Origin  of  the 
jury,  178 — Advantages  of  the  jury,  179 — Defects  of  the  jury, 
180 — The  jury  as  a  protection  to  liberty,  182 — The  jury  and 
criminal  law,  184 — ^Juries  untrained  and  irresponsible,  186 — 
Numbers  fatal  to  wisdom,  188 — Defects  of  judges,  193 — ■ 
Difference  between  the  English  and  Continental  jury,  194 — 
Social  evolution  and  the  jury,,  196 — The  jury  compared  to  the 
jlectorate,  197 — How  to  utilise  the  jury,  198.  IV.  Existing 
prison  systems  a  failure,  201 — Defects  of  existing  penal 
systems,  201 — The  abuse  of  short  sentences,  202 — The 
growth  of  recidivism,  203 — Garofalo's  scheme  of  punish- 
ments, 204 — Von  Liszt's  scheme  of  punishments,  206 — The 
basis  of  a  rational  system  of  punishment,  207 — The  inde- 
terminate sentence,  207 — Flogging,  210 — The  indefinite 
sentence  for  habitual  offenders,  211 — Van  Hamel's  proposals 
as  to  sentences,  212 — The  liberation  of  prisoners  on  an 
indefinite  sentence,  213 — The  supervision  of  punishment, 
213 — Conditional  release,  215 — Good  conduct  test  in  prisons, 
216 — Police  supervision,  216 — Indemnification  of  the  victims 
of  crime,  217 — The  duty  of  the  State  towards  the  victims  of 
crime,  222 — Defensive  measures  must  be  adapted  to  the 
different  classes  of  criminals,  225 — Uniformity-  of  punish- 
ment, 225 — The  prison  staff,  227 — Classification  of  prisoners, 
227 — Prison  labour,  228.  V.  Asylums  for  criminal  lunatics, 
230 — The  treatment  of  insane  criminals,  232 — Crime  and 
madness,  234 — Classification  of  asylums  for  criminal  lunatics, 
237 — The  treatment  of  born  criminals,  238 — The  death 
penalty,  239 — Extension  of  the  death  penalty,  243— Inade- 
quacy of  the  death  penalty,  245 — Imprisonment  for  life,  246 
— Transportation,  248 — Labour  settlements,  249 — Estab- 
lishments for  habitual  criminals,  250 — Criminal  heredity,  25 1 
— Incorrigible  offenders,  252 — Cumulative  sentences,  253 — 
Uncorrected  or  incorrigible  criminals,  254 — Cellular  prisons, 
256 — Solitary  confinement,  257 — The  progressive  system  of 
imprisonment,  257 — The  evils  of  cellular  imprisonment,  260 
— The  cell  does  not  secure  separation,  262 — Costliness  of  the 
cellular  system,  263 — Labour  under  the  cellular  system,  264 
— Open-air  work  the  best  for  prisoners,  265 — The  treatment 
of  habitual  criminals,   266 — The  treatment    of   occasional 


CONTENTS.  Xlll 

criminals,  267 — ^The  treatment  of  young  offenders,  268 — 
Futility  of  short  sentences,  268 — Substitutes  for  short  sen- 
tences, 269 — Compulsory  work  without  imprisonment,  271 
— Conditional  sentences,  271 — Conditional  sentences  in 
Belgium,  273 — Conditional  sentences  in  the  United  States, 
275 — Objections  to  conditional  sentences,  276 — When  the 
conditional  sentence  is  legitimate,  282 — The  treatment  of 
criminals  of  passion,  282 — Conclusion,  284. 


INTRODUCTION. 

THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW. 

During  the  past  twelve  or  fourteen  years  Italy  has 
poured  forth  a  stream  of  new  ideas  on  the  subject  of 
crime  and  criminals ;  and  only  the  short-sightedness 
of  her  enemies  or  the  vanity  of  her  flatterers  can 
fail  to  recognise  in  this  stream  something  more  than 
the  outcome  of  individual  labours. 

A  new  departure  in  science  is  a  simple  phenomenon 
of  nature,  determined  in  its  origin  and  progress,  like 
all  such  phenomena,  by  conditions  of  time  and  place. 
Attention  must  be  drawn  to  these  conditions  at  the 
outset,  for  it  is  only  by  accurately  defining  them  that 
the  scientific  conscience  of  the  student  of  sociology  is 
developed  and  confirmed. 

The  experimental  philosophy  of  the  latter  half 
of  our  century,  combined  with  human  biology  and 
psychology,  and  with  the  natural  study  of  human 
society,  had  already  produced  an  intellectual  atmos- 
phere decidedly  favourable  to  a  practical  inquiry  into 
the  criminal  manifestations  of  individual  and  social 
life. 


XVI  INTRODUCTION, 

To  these  general  conditions  must  be  added  the 
plain  and  everyday  contrast  between  the  metaphysical 
perfection  of  criminal  law  and  the  progressive  increase 
of  crime,  as  well  as  the  contrast  between  legal  theories 
of  crime  and  the  study  of  the  mental  characteristics 
of  a  large  number  of  criminals. 

From  this  point  onwards,  nothing  could  be  more 
natural  than  the  rise  of  a  new  school,  whose  object 
was  to  make  an  experimental  study  of  social  patho- 
logy in  respect  of  its  criminal  symptoms,  in  order  to 
bring  theories  of  crime  and  punishment  into  harmony 
with  everyday  facts.  This  is  the  positive  school  of 
criminal  law,  whereof  the  fundamental  purpose  is 
to  study  the  natural  genesis  of  criminality  in  the 
criminal,  and  in  the  physical  and  social  conditions 
of  his  life,  so  as  to  apply  the  most  effectual  remedies 
to  the  various  causes  of  crime. 

Thus  we  are  not  concerned  merely  with  the  con- 
struction of  a  theory  of  anthropology  or  psychology, 
or  a  system  of  criminal  statistics,  nor  merely  with  the 
setting  of  abstract  legal  theories  against  other  theories 
which  are  still  more  abstract.  Our  task  is  to  show 
that  the  basis  of  every  theory  concerning  the  self- 
defence  of  the  community  against  evil-doers  must  be 
the  observation  of  the  individual  and  of  society  in 
their  criminal  activity.  In  one  word,  our  task  is  to 
construct  a  criminal  sociology. 

For,  as  it  seems  to  me,  all  that  general  sociology 
c^n  do  is  to  furnish  the  more  ordinary  and  universal 
infetences  concerning  the  life  of  communities ;  and 
upon  this  canvas  the  several  sciences  of  sociology 
are  delineated  by  the  specialised  observation  of  each 


INTRODUCTION.  XVU 

distinct  order  of  social  facts.  In  this  manner  we  may 
construct  a  political  sociology,  an  economic  sociology, 
a  legal  sociology,  by  studying  the  special  laws  of  normal 
or  social  activity  amongst  human  beings,  after  previ- 
ously studying  the  more  general  laws  of  individual 
and  collective  existence.  And  thus  we  may  construct 
a  criminal  sociology,  by  studying,  with  such  an  aim 
and  by  such  a  method,  the  abnormal  and  anti-social 
actions  of  human  beings — or,  in  other  words,  by 
studying  crime  and  criminals. 

Neither  the  Romans,  great  exponents  as  they  were 
of  the  civil  law,  nor  the  practical  spirits  of  the  Middle 
Ages,  had  been  able  to  lay  down  a  philosophic  system 
of  criminal  law.  It  was  Beccaria,  influenced  far  more 
by  sentiment  than  by  scientific  precision,  who  gave  a 
great  impetus  to  the  doctrine  of  crimes  and  punish- 
ments by  summarising  the  ideas  and  sentiments  of 
his  age.i  Out  of  the  various  germs  contained  in  his 
generous  initiative  there  has  been  developed,  to  his 
well-deserved  credit,  the  classical  school  of  criminal 
law. 

This  school  had,  and  still  has,  a  practical  purpose, 
namely,  to  diminish  all  punishments,  and  to  abolish 
a  certain  number,  by  a  magnanimous  reaction  of 
humanity  against  the  arbitrary  harshness  of  mediaeval 
times.     It  had  also,  and  still  has,  a  method  of  its  own, 

'  Desjardins,  in  the  Introduction  to  his  "  Cahiers  des  Etats  Gendraux 
en  1789' et  la  Legislation  Criminelle,"  Paris,  1883,  gives  a  good  de- 
scription of  the  state  of  public  opinion  in  that  age.  He  speaks  also 
of  the  charges  which  were  brought  against  the  advocates  of  the  new 
doctrines  concerning  crime,  that  they  upset  the  moral  and  social  order 
of  things.  Nowadays,  charges  against  the  experimental  school  are  cited 
from  these  same  advocates  ;  for  the  revolutionary  of  yesterday  is  very 
often  the  conservative  of  to-day. 


XVlll  INTRODUCTION. 

namely,  to  study  crime  from  its  first  principles,  as  an 
abstract  entity  dependent  upon  law. 

Here  and  there  since  the  time  of  Beccaria  another 
stream  of  theory  has  made  itself  manifest.  Thus 
there  is  the  correctional  school,  which  Roeder  brought 
into  special  prominence  not  many  years  ago.  But 
though  it  flourished  in  Germany,  less  in  Italy  and 
France,  and  somewhat  more  in  Spain,  it  had  no  long 
existence  as  an  independent  school,  for  it  was  only  too 
easily  confuted  by  the  close  sequence  of  inexorable 
facts.  Moreover,  it  could  do  no  more  than  oppose 
a  few  humanitarian  arguments  on  the  reformation  of 
offenders  to  the  traditional  arguments  of  the  theories 
of  jurisprudence,  of  absolute  and  relative  justice,  of 
intimidation,  utility,  and  the  like. 

No  doubt  the  principle  that  punishment  ought  to 
have  a  reforming  effect  upon  the  criminal  survives  as 
a  rudimentary  organ  in  nearly  all  the  schools  which 
concern  themselves  with  crime.  But  this  is  only  a 
secondary  principle,  and  as  it  were  the  indirect  object 
of  punishment ;  and  besides,  the  observations  of 
anthropology,  psychology,  and  criminal  statistics  have 
finally  disposed  of  it,  having  established  the  fact  that, 
under  any  system  of  punishment,  with  the  most  severe 
or  the  most  indulgent  methods,  there  are  always  cer- 
tain types  of  criminals,  representing  a  large  number 
of  individuals,  in  regard  to  whom  amendment  is  simply 
impossible,  or  very  transitory,  on  account  of  their 
organic  and  moral  degeneration.  Nor  must  we  for- 
get that,  since  the  natural  roots  of  crime  spring  not 
only  from  the  individual  organism,  but  also,  in  large 
measure,  from  its  physical    and  social   environment, 


INTRODUCTION.  XIX 

correction  of  the  individual  is  not  sufficient  to  pre- 
vent relapse  if  we  do  not  also,  to  the  best  of  our 
ability,  reform  the  social  environment.  The  utility 
and  the  duty  of  reformation  none  the  less  survive, 
even  for  the  positive  school,  whenever  it  is  possible, 
and  for  certain  classes  of  criminals ;  but,  as  a  funda- 
mental principle  of  a  scientific  theory,  it  has  passed 
away. 

Hitherto,  then,  the  classical  school  stands  alone, 
with  varying  shades  of  opinion,  but  one  and  distinct 
as  a  method,  and  as  a  body  of  principles  and  conse- 
quences. And  whilst  it  has  achieved  its  aim  in  the 
most  recent  penal  codes,  with  a  great,  and  too  fre- 
quently an  excessive  diminution  of  punishments,  so 
in  respect  of  theory,  in  Italy,  Germany,  and  France, 
it  has  crowned  its  work  with  a  series  of  masterpieces, 
amongst  which  I  will  only  mention  Carrara's  "  Pro- 
gramme of  Criminal  Law."  As  the  author  tells  us  in 
one  of  his  later  editions,  from  the  d  priori  principle 
that  "  crime  is  a  fact  dependent  upon  law,  an  infrac- 
tion rather  than  an  action,"  he  deduced — and  that  by 
the  sheer  force  of  an  admirable  logic — a  complete 
symmetrical  scheme  of  legal  and  abstract  conse- 
quences, wherein  judges  are  compelled,  whether  they 
like  it  or  not,  to  determine  the  position  of  every 
criminal  who  comes  before  them. 

But  now  the  classical  school,  which  sprang  from  the 
marvellous  little  work  of  Beccaria,  has  completed  its 
historic  cycle.  It  has  yielded  all  it  could,  and  writers 
of  the  present  day  who  still  cling  to  it  can  only  re- 
cast the  old  material.  The  youngest  of  them,  indeed, 
are  condemned  to  a  sort  of  Byzantine  discussion  of 


XX  INTRODUCTION. 

scholastic  formulas,  and  to  a  sterile  process  of  scientific 
rumination. 

And  meantime,  outside  our  universities  and 
academies,  criminality  continues  to  grow,  and  the 
punishments  hitherto  inflicted,  though  they  can  neither 
protect  nor  indemnify  the  honest,  succeed  in  corrupting 
and  degrading  evil-doers.  And  whilst  our  treatises 
and  codes  (which  are  too  often  mere  treatises  cut  up 
into  segments)  lose  themselves  in  the  fog  of  their 
legal  abstractions,  we  feel  more  strongly  every  day, 
in  police  courts  and  at  assizes,  the  necessity  for 
those  biological  and  sociological  studies  of  crime  and 
criminals  which,  when  logically  directed,  can  throw 
light  as  nothing  else  can  upon  the  administration  of 
the  penal  law. 


CHAPTER  I. 

THE  DATA  OF  CRIMINAL  ANTHROPOLOGY. 

The  experimental  school  of  criminal  sociology  took 
its  original  title  from  its  studies  of  anthropology  ;  it  is 
still  commonly  regarded  as  little  more  than  a  "criminal 
anthropology  school."  And  though  this  title  no  longer 
corresponds  with  the  development  of  the  school,  which 
also  takes  into  account  and  investigates  the  data  of 
psychology,  statistics,  and  sociology,  it  is  none  the  less 
true  that  the  most  characteristic  impetus  of  the  new 
scientific  movement  was  due  to  anthropological  studies. 
This  was  conspicuously  the  case  when  Lombroso, 
giving  a  scientific  form  to  sundry  scattered  and  frag- 
mentary observations  upon  criminals,  added  fresh  life 
to  them  by  a  collection  of  inquiries  which  were  not 
only  original  but  also  governed  by  a  distinct  idea,  and 
established  the  new  science  of  criminal  anthropology. 
It  is  possible,  of  course,  to  discover  a  very  eariy 
origin  for  criminal  anthropology,  as  for  general 
anthropology  ;  for,  as  Pascal  said,  man  has  always 
been  the  most  wonderful  object  of  study  to  himself. 
For  observations  on  physiognomy  in  particular  we 
may  go  as  far  backwards  as  to  Plato,  and  his  com- 
parisons of  the  human  face  and  character  with  those 


2  CRIMINAL  SOCIOLOGY, 

of  the  brutes,  or  even  to  Aristotle,  who  still  earlier 
observed  the  physical  and  psychological  correspon- 
dence between  the  passions  of  men  and  their  facial 
expression.  And  after  the  mediaeval  gropings  in 
chiromancy,  metoscopy,  podomancy  and  so  forth, 
one  comes  to  the  seventeenth  century  studies  in 
physiognomy  by  the  Jesuit  Niquetius,  by  Cortes, 
Cardanus,  De  la  Chambre,  Delia  Porta,  &c.,  who 
were  precursors  of  Gall,  Spurzheim,  and  Lavater  on 
one  side,  and,  on  the  other,  of  the  modern  scientific 
study  of  the  emotions,  with  their  expression  in  face 
and  gesture,  conducted  by  Camper,  Bell,  Engel, 
Burgess,  Duchenne,  Gratiolet,  Piderit,  Mantegazza, 
Schaffhausen,  Schack,  Heiment,  and  above  all  by 
Darwin. 

With  regard  to  the  special  observation  of  criminals, 
over  and  above  the  limited  statements  of  the  old 
physiognomists  and  phrenologists,  Lauvergne  (1841) 
in  France  and  Attomyr  (1842)  in  Germany  had 
accurately  applied  the  theories  of  Gall  to  the  examin- 
ation of  convicts  ;  and  their  works,  in  spite  of  certain 
exaggerations  of  phrenology,  are  still  a  valuable 
treasury  of  observations  in  anthropology.  In  Italy, 
De  Rolandis  (1835)  had  published  his  observations 
on  a  deceased  criminal  ;  in  America,  Sampson  (1846) 
had  traced  the  connection  between  criminality  and 
cerebral  organisation  ;  in  Germany,  Camper  (1854) 
published  a  study  on  the  physiognomy  of  mur- 
derers;  and  Ave  Lallemant  (1858-62)  produced  a 
long  work  on  criminals,  from  the  psychological  point 
of  view.  ^ 

But  the  science   of  criminal   anthropology,  more 


THE   DATA   OF  CRIMINAL   ANTHROPOLOGY.         3 

Strictly  speaking,  only  begins  with  the  observations 
of  English  gaol  surgeons  and  other  learned  men,  such 
as  Forbes  Winslow  (1854),  Mayhew  (i860),  Thomson 
(1870),  Wilson  (1870),  Nicolson  (1872),  Maudsley 
(1873).  and  with  the  very  notable  work  of  Despine 
(1868),  which  indeed  gave  rise  to  the  inquiries  of 
Thomson,  and  which,  in  spite  of  its  lack  of  synthetic 
treatment  and  systematic  unity,  is  still,  taken  in 
conjunction  with  the  work  of  Ave  Lallemant,  the 
most  important  inquiry  in  the  psychological  domain 
anterior  to  the  work  of  Lombroso. 

Nevertheless,  it  was  only  with  the  first  edition  of 
"The  Criminal"  (1876)  that  criminal  anthropology 
asserted  itself  as  an  independent  science,  distinct  from 
the  main  trunk  of  general  anthropology,  itself  quite 
recent  in  its  origin,  having  come  into  existence  with 
the  works  of  Daubenton,  Blumenbach,  Soemmering, 
Camper,  White,  and  Pritchard. 

The  work  of  Lombroso  set  out  with  two  original 
faults  :  the  mistake  of  having  given  undue  importance, 
at  any  rate  apparently,  to  the  data  of  craniology  and 
anthropometry,  rather  than  to  those  of  psychology  ; 
and,  secondly,  that  of  having  mixed  up,  in  the  first 
two  editions,  all  criminals  in  a  single  class.  In  later 
editions  these  defects  were  eliminated,  Lombroso 
having  adopted  the  observation  which  I  made  in  the 
first  instance,  as  to  the  various  anthropological  cate- 
gories of  criminals.  This  does  not  prevent  certain 
critics  of  criminal  anthropology  from  repeating,  with 
a  strange  monotony,  the  venerable  objections  as  to 
the  "impossibility  of  distinguishing  a  criminal  from 
an   honest   man    by  the   shape  of  his   skull,"  or  of 


4  CRIMINAL  SOCIOLOGY. 

"  measuring  human  responsibility  in  accordance  with 
different  craniological  types."  * 

But  these  original  faults  in  no  way  obscure  the  two 
following  noteworthy  facts — that  within  a  few  years 
after  the  publication  of  "The  Criminal"  there  were 
published,  in  Italy  and  elsewhere,  a  whole  library  of 
studies  in  criminal  anthropology,  and  that  a  new 
school  has  been  established,  having  a  distinct  method 
and  scientific  developments,  which  are  no  longer  to  be 
looked  for  in  the  classical  school  of  criminal  law. 


1. 

What,  then,  is  criminal  anthropology?  And  of 
what  nature  are  its  fundamental  data,  which  lead  us 
up  to  the  general  conclusions  of  criminal  sociology  ? 

If  general  anthropology  is,  according  to  the 
definition  of  M,  de  Quatrefages,  the  natural  history  of 
man,  as  zoology  is  the  natural  history  of  animals, 
criminal  anthropology  is  but  the  study  of  a  single 
variety  of  mankind.  In  other  words,  it  is  the  natural 
history  of  the  criminal  man. 

Criminal  anthropology  studies  the  criminal  man  in 
his  organic  and  psychical  constitution,  and  in  his  life 
as  related  to  his  physical  and  social  environment — 
just  as  anthropology  has  done  for  man  in  general,  and 
for  the  various  races  of  mankind.  So  that,  as  already 
said,  whilst   the   classical  observers  of  crime   study 

*  Vol.  n.  of  the  fourth  edition  of  "The  Criminal  "  (1889)  is  specially 
concerned  with  the  epileptic  and  idiotic  criminal  (referred  to  alcoholism, 
hyst'.ria,  mattoidism)  wiiether  occasional  or  subject  to  violent  impulse  ; 
whilst  vol.  i.  is  concerned  only  with  congenital  criminality  and  moral 
insanity. 


THE  DATA   OF  CRIMINAL  ANTHROPOLOGY,         5 

various  offences  in  their  abstract  character,  on  the 
assumption  that  the  criminal,  apart  from  particular 
cases  which  are  evident  and  appreciable,  is  a  man  of 
the  ordinary  type,  under  normal  conditions  of  intelli- 
gence and  feeling,  the  anthropological  observers  of 
crime,  on  the  other  hand,  study  the  criminal  first  of 
all  by  means  of  direct  observations,  in  anatomical 
and  physiological  laboratories,  in  prisons  and  mad- 
houses, organically  and  physically,  comparing  him 
with  the  typical  characteristics  of  the  normal  man,  as 
well  as  with  those  of  the  mad  and  the  degenerate. 

Before  recounting  the  general  data  of  criminal 
anthropology,  it  is  necessary  to  lay  particular  stress 
upon  a  remark  which  I  made  in  the  original  edition 
of  this  work,  but  which  our  opponents  have  too  fre- 
quently ignored. 

We  must  carefully  discriminate  between  the 
technical  value  of  anthropological  data  concerning 
the  criminal  man  and  their  scientific  function  in 
criminal  sociology. 

For  the  student  of  criminal  anthropology,  who 
builds  up  the  natural  history  of  the  criminal,  every 
characteristic  has  an  anatomical,  or  a  physiological, 
or  a  psychological  value  in  itself,  apart  from  the 
sociological  conclusions  which  it  may  be  possible  to 
draw  from  it.  The  technical  inquiry  into  these  bio- 
psychical  characteristics  is  the  special  work  of  this 
new  science  of  criminal  anthropology. 

Now  these  data,  which  are  the  conclusions  of  the 
anthropologist,  are  but  starting-points  for  the  criminal 
sociologist,  from  which  he  has  to  reach  his  legal 
and  social  conclusions.     Criminal  anthropology  is  to 


6  CRIMINAL  SOCIOLOGY. 

criminal  sociology,  in  its  scientific  function,  what  the 
biological  sciences,  in  description  and  experimenta- 
tion, are  to  clinical  practice. 

In  other  words,  the  criminal  sociologist  is  not  in 
duty  bound  to  conduct  for  himself  the  inquiries  of 
criminal  anthropology,  just  as  the  clinical  operator  is 
not  bound  to  be  a  physiologist  or  an  anatomist.  No 
doubt  the  direct  observation  of  criminals  is  a  very 
serviceable  study,  even  for  the  criminal  sociologist  ; 
but  the  only  duty  of  the  latter  is  to  base  his  legal  and 
social  mferences  upon  the  positive  data  of  criminal 
anthropology  for  the  biological  aspects  of  crime,  and 
upon  statistical  data  for  the  influences  of  physical  and 
social  environment,  instead  of  contenting  himself  with 
mere  abstract  legal  syllogisms. 

On  the  other  hand  it  is  clear  that  sundry  questions 
which  have  a  direct  bearing  upon  criminal  anthropo- 
logy— as,  for  instance,  in  regard  to  some  particular 
biological  characteristic,  or  to  its  evolutionary  signifi- 
cance— have  no  immediate  obligation  or  value  for 
criminal  sociology,  which  employs  only  the  funda- 
mental and  most  indubitable  data  of  criminal 
anthropology.  So  that  it  is  but  a  clumsy  way  of 
propounding  the  question  to  ask,  as  it  is  too  fre- 
quently asked  :  "  What  connection  can  there  be 
between  the  cephalic  index,  or  the  transverse 
measurement  of  .a  murderer's  jaw,  and  his  responsi- 
bility for  the  crime  which  he  has  committed  ?  "  The 
scientific  function  of  the  anthropological  data  is  a 
very  different  thing,  and  the  only  legitimate  question 
which  sociology  can  put  to  anthropology  is  this : — 
*•  Is  the  criminal,  and  in  what  respects  is  he,  a  normal 


THE   DATA    OF   CRIMINAL   ANTHROPOLOGY.         7 

or  an  abnormal  man  ?  And  if  he  is,  or  when  he  is, 
abnormal,  whence  is  the  abnormality  derived  ?  Is  it 
congenital  or  contracted,  capable  or  incapable  of 
rectification  ?  " 

This  is  all  ;  and  yet  it  is  sufficient  to  enable  the 
student  of  crime  to  arrive  at  positive  conclusions  con- 
cerning the  measures  which  society  can  take  in  order 
to  defend  itself  against  crime  ;  whilst  he  can  draw 
other  conclusions  from  criminal  statistics. 

As  for  the  principal  data  hitherto  established  by 
criminal  anthropology,  whilst  we  must  refer  the 
reader  for  detailed  information  to  the  works  of 
specialists,  we  may  repeat  that  this  new  science 
studies  the  criminal  in  his  organic  and  in  his 
psychical  constitution,  for  these  are  the  two  insepar- 
able aspects  of  human  existence. 

A  beginning  has  naturally  been  made  with  the 
organic  study  of  the  criminal,  both  anatomical  and 
physiological,  since  we  must  study  the  organ  before 
the  function,  and  the  physical  before  the  moral. 
This,  however,  has  given  rise  to  a  host  of  miscon- 
ceptions and  one-sided  criticisms,  which  have  not  yet 
ceased  ;  for  criminal  anthropology  has  been  charged, 
by  such  as  consider  only  the  most  conspicuous  data, 
with  narrowing  crime  down  to  the  mere  result  of 
conformations  of  the  skull  or  convolutions  of  the 
brain.  The  fact  is  that  purely  morphological  obser- 
vations are  but  preliminary  steps  to  the  histological 
and  physiological  study  of  the  brain,  and  of  the  body 
as  a  whole. 

As  for  craniology,  especially  in  regard  to  the  two 
distinct    and    characteristic    types    of    criminals  — 


8  CRIMINAL  SOCIOLOGY. 

murderers  and  thieves,  an  incontestable  inferiority 
has  been  noted  in  the  shape  of  the  head,  by  com- 
parison with  normal  men,  together  with  a  greater 
frequency  of  hereditary  and  pathological  departures 
from  the  normal  type.  Similarly  an  examination 
of  the  brains  of  criminals,  whilst  it  reveals  in  them 
an  inferiority  of  form  and  histological  type,  gives 
also,  in  a  great  majority  of  cases,  indications  of 
disease  which  were  frequently  undetected  in  their 
lifetime.  Thus  M.  Dally,  who  for  twenty  years  past 
has  displayed  exceptional  acumen  in  problems  of 
this  kind,  said  that  "  all  the  criminals  who  had  been 
subjected  to  autopsy  (after  execution)  gave  evidence 
of  cerebral  injury."  * 

Observations  of  the  physiognomy  of  criminals, 
which  no  one  will  undervalue  who  has  studied 
criminals  in  their  lifetime,  with  adequate  knowledge^ 
as  well  as  other  physical  inquiries,  external  and 
internal,  have  shown  the  existence  of  remarkable 
types,  from  the  greater  frequency  of  the  tattooed 
man  to  exceptionally  abnormal  conditions  of  the 
frame  and  the  organs,  dating  from  birth,  together 
with  many  forms  of  contracted  disease. 

Finally,  inquiries  of  a  physiological  nature  into 
the  reflex  action  of  the  body,  and  especially  into 
general  and  specific  sensibility,  and  sensibility  to 
pain,  and  into  reflex  action  under  external  agencies, 
conducted  with  the  aid  of  instruments  which  record 
the  results,  have  shown  abnormal  conditions,  all 
tending    to   physical   insensibility,   deep-seated   and 

■  In  a  discussion  at  the  Medico-Psychological  Society  of  Paris  f 
**  Proceedings "  for  l88t,  i.  93,  266,  280,  483. 


THE  DATA   OF  CRIMINAL  ANTHROPOLOGY,        (, 

more  or  less  absolute,  but  incontestably  different  in 
kind  from  that  which  obtains  amongst  the  average 
men  of  the  same  social  classes. 

These  are  organic  conditions,  it  must  be  at  once 
affirmed,  which  account  as  nothing  else  can  for  the 
undeniable  fact  of  the  hereditary  transmission  of 
tendencies  to  crime,  as  well  as  of  predisposition  to  in- 
sanity, to  suicide,  and  to  other  forms  of  degeneration. 

The  second  division  of  criminal  anthropology, 
which  is  by  far  the  more  important,  with  a  more 
direct  influence  upon  criminal  sociology,  is  the 
psychological  study  of  the  criminal.  This  recogni- 
tion of  its  greater  importance  does  not  prevent  our 
critics  from  concentrating  their  attack  upon  the 
organic  characterisation  of  criminals,  in  oblivion  of 
the  psychological  characterisation,  which  even  in 
Lombroso's  book  occupies  the  larger  part  of  the  text.^ 

Criminal  psychology  presents  us  with  the  cha- 
racteristics which  may  be  called  specially  descriptive, 
such  as  the  slang,  the  handwriting,  the  secret  symbols, 
the  literature  and  art  of  the  criminal  ;  and  on  the 
other  hand  it  makes  known  to  us  the  characteristics 
which,  in  combination  with  organic  abnormality, 
account  for  the  development  of  crime  in  the  in- 
dividual.      And    these    characteristics   are    grouped 

'  A  recent  example  of  this  infatuation  amongst  one-sided,  and  there- 
fore ineftectual  critics  is  the  work  of  Colajanni,  "  Socialism  and  Criminal 
Sociology,"  Catania,  1889.  In  the  first  volume,  which  is  devoted  to 
criminal  anthropology,  out  of  four  hundred  pages  of  argumentative 
criticism  (which  does  not  prevent  the  author  from  taking  our  most 
lundamental  conclusions  on  the  anthropological  classification  of 
criminals,  and  on  crime,  as  phenomena  of  psychical  atavism),  there  are 
only  six  pages,  227-232,  for  the  criticism  of  psychological  types. 


10  CRIMINAL  SOCIOLOGY. 

in   two    psychical    and    fundamental    abnormalities, 
namely,  moral  insensibility  and  want  of  foresight. 

Moral  insensibility,  which  is  decidedly  more  con- 
genital than  contracted,  is  either  total  or  partial,  and 
is  displayed  in  criminals  who  inflict  personal  injuries, 
as  much  as  in  others,  with  a  variety  of  symptoms 
which  I  have  recorded  elsewhere,  and  which  are 
eventually  reduced  to  these  conditions  of  the  moral 
sense  in  a  large  number  of  criminals — a  lack  of 
repugnance  to  the  idea  and  execution  of  the  offence, 
previous  to  its  commission,  and  the  absence  of 
remorse  after  committing  it. 

Outside  of  these  conditions-  of  the  moral  sense, 
which  is  no  special  sentiment,  but  an  expression  of 
the  entire  moral  constitution  of  the  individual,  as  the 
temperament  is  of  his  physiological  constitution,  other 
sentiments,  of  selfishness  or  even  of  unselfishness,  are 
not  wanting  in  the  majority  of  criminals.  Hence 
arise  many  illusions  for  superficial  observers  of 
criminal  life.  But  these  latter  sentiments  are  either 
excessive,  as  hate,  cupidity,  vanity  and  the  like,  and 
are  thus  stimulants  to  crime,  or  else,  as  with  religion, 
love,  honour,  loyalty,  and  so  on,  they  cease  to  be  forces 
antagonistic  to  crime,  because  they  have  no  founda- 
tion in  a  normal  moral  sense. 

From  this  fundamental  inferiority  of  sentiment 
there  follows  an  inferiority  of  intelligence,  which, 
however,  does  not  exclude  certain  forms  of  craftiness, 
though  it  tends  to  inability  to  foresee  the  conse- 
quences of  crime,  far  in  excess  of  what  is  observed 
in  the  average  members  of  the  classes  of  society  to 
which  the  several  criminals  belong. 


THE   DATA    OF  CRIMINAL   ANTHROPOLOGY.      II 

Thus  the  psychology  of  the  criminal  is  summed 
up  in  a  defective  resistance  to  criminal  tendencies 
and  temptations,  due  to  that  ill-balanced  impulsive- 
ness which  characterises  children  and  savages. 


II. 


I  have  long  been  convinced,  by  my  study  of  wor,ks 
on  criminal  anthropology,  but  especially  by  direct 
and  continuous  observation  from  a  physiological  -or 
a  psychological  point  of  view  of  a  large  number  of 
criminals,  whether  mad  or  of  normal  intelligence, 
that  the  data  of  criminal  anthropology  are  not 
entirely  applicable,  in  their  complete  and  essential 
form,  to  all  who  commit  crimes.  They  are  to  be 
confined  to  a  certain  number,  who  may  be  called 
congenital,  incorrigible,  and  habitual  criminals.  But 
apart  from  these  there  is  a  class  of  occasional 
criminals,  who  do  not  exhibit,  or  who  exhibit  in 
slighter  degrees,  the  anatomical,  physiological,  and 
psychological  characteristics  which  constitute  the 
type  described  by  Lombroso  as  "  the  criminal  man." 

Before  further  defining  these  two  main  classes  of 
criminals,  in  their  natural  and  descriptive  character- 
isation, I  must  add  a  positive  demonstration,  which 
can  be  attested  under  two  distinct  forms — (i)  by  the 
results'  of  anthropological  observation  of  criminals, 
and  (2)  by  statistics  of  relapse,  and  of  the  manifesta- 
tions of  crime  which  anthropologists  have  hitherto 
chiefly  studied. 

As  for  organic  anomalies,  as  I  cannot  here  treat 


12 


CRIMINAL   SOCIOLOGY, 


the  whole  matter  in  detail,  I  will  simply  reproduce 
from  my  study  of  homicide  a  summary  of  results 
for  a  single  category  of  these  anomalies,  which  a 
methodical  observation  of  every  class  of  criminals 
will  carry  further  and  render  more  precise,  as  Lom- 
broso  has  already  shown  (see  the  fourth  edition  of 
his  work,  1889,  p.  273). 


Homicides  sentenced 

Persons  in  whom  I  detected 

To  penal  servi- 
tude (346) 

To     Imprison- 
ment (363) 

Soldiers 
(7") 

No  anomaly  in  the  skull    ... 
One  or  two  anomalies 
Three  or  four  anomalies     ... 
Five  or  six  anomalies 
Seven  or  more  anomalies  ... 

1 1*9  p.  c. 

47'2     „ 

33  9     •> 

67     » 

•3     .. 

8-2  p.  c. 
56-6    „ 
32*6    „ 

2-3     » 
'3    .. 

37-2  p.  c 

5i-»    » 

II       » 

0       „ 

0       „ 

(ti 


SThat  is  to  say,  men  with  normal  skulls  were  three 
times  as  numerous  amongst  soldiers  as  they  were 
amongst  criminals ;  of  men  with  a  noteworthy 
number  of  anomalies  occurring  together  (three  or 
four),  there  were  three  times  as  many  amongst 
criminals  as  amongst  soldiers ;  and  there  was  not 
one  soldier  amongst  those  who  showed  an  extra- 
ordinary number  (five  or  more). 

This  proves  to  demonstration  not  only  the  greater 
frequency  of  anomalous  skulls  (and  the  same  is  true 
of  physiognomical,  physiological,  and  psychological 
anomalies)  amongst  criminals,  but  also  that  amongst 
these  criminals  between  fifty  and  sixty  per  cent,  show 
very  few  anomalies,  whilst  about  one-third  of  the 
whole  number  present  a  remarkable  combination, 
and  one-tenth  are  normal  in  this  respect. 


THE  DATA   OF  CRIMINAL  ANTHROPOLOGY,       I3 

Amongst  the  statistical  data  exhibiting  the  primary 
characteristics  of  the  majority  of  criminals,  the  data 
connected  with  relapsed  criminals  are  especially  con- 
spicuous. Though  relapses,  like  first  offences,  are 
partly  due  to  social  conditions,  they  also  have  a 
manifest  biological  cause,  since,  under  the  operation 
of  the  same  penal  system,  there  are  some  liberated 
prisoners  who  relapse  and  some  who  do  not. 

The  statistics  of  relapse  are  unfortunately  very 
difficult  to  collect,  on  account  of  differences  in  the 
legislation  of  different  countries,  and  in  the  prepara- 
tion of  records,  which,  even  under  the  more  general 
adoption  of  anthropometrical  identification,  rarely 
succeed  in  preventing  the  use  of  fresh  names  by 
professional  criminals.  So  that  we  may  still  say,  in 
the  words  of  one  who  is  a  very  good  judge  in  this 
matter,  M.  Yvernes,  not  only  that  "  the  Prisons 
Congress  of  London  (1872)  was  compelled  to  leave 
various  problems  undecided  for  lack  of  documentary 
evidence,  and  especially  the  question  of  relapsed 
criminals,"  but  also  that  to  this  day  (1879),  "  we  find 
varying  results  in  different  countries,  the  exact 
significance  of  which  is  not  apparent." 

I  have,  however,  published  an  essay  on  interna- 
tional statistics  of  relapsed  criminals,  from  which  I 
drew  the  following  general  conclusion  :  that  even  in 
prison  statistics,  which  often  give  higher  totals  of 
relapsed  cases  than  are  given  by  judicial  statistics, 
because  they  are  more  personal,  and  therefore  less 
uncertain,  we  never  obtain  the  full  number  of  relapses, 
though  the  totals  given  vary  from  country  to  country, 
from  district  to  district,  and  from  prison  to  prison.     It 


14  •  CRIMINAL  SOCIOLOGY. 

would  be  impossible  to  state  accurately  what  propor- 
tion the  numbers  given  bear  to  the  actual  number ; 
but  I  am  justified  in  saying,  from  all  the  materials 
which  I  have  collected  and  compared  in  the  aforesaid 
essay,  that  the  number  of  relapses  in  Europe  is 
generally  between  50  and  60  per  cent.,  and  certainly 
rather  above  than  below  this  limit.  Whilst  the  Italian 
statistics,  for  instance,  give  14  per  cent,  of  relapses 
amongst  prisoners  sentenced  to  penal  servitude,  I 
found  by  experience  37  per  cent  out  of  346  who 
admitted  to  me  that  they  had  relapsed  ;  and,  amongst 
those  who  had  been  sentenced  to  simple  imprison- 
ment, I  found  60  per  cent,  out  of  363,  in  place  of  the 
33  per  cent,  recorded  in  the  prison  statistics.  The 
difference  may  be  due  to  the  particular  conditions 
of  the  prisons  which  I  visited  ;  but  in  any  case 
it  establishes  the  inadequacy  of  the  official  figures 
dealing  with  relapse. 

After  this  statement  of  a  general  fact,  which  proves, 
as  Lombroso  and  Espinas  said,  that  "  the  relapsed 
criminal  is  the  rule  rather  than  the  exception,"  we  can 
proceed  to  set  down  the  special  proportions  of  relapse 
for  each  particular  crime,  so  as  to  obtain  an  indication 
of  the  forms  of  crime  which  are  most  frequently  re- 
sorted to  by  habitual  criminals. 

For  Italy  I  have  found  that  the  highest  percentages 
of  relapse  are  afforded  by  persons  convicted  of  theft 
and  petty  larceny,  forgery,  rape,  manslaughter,  con- 
spiracy, and,  at  the  correctional  courts,  vagrancy 
and  mendicity.  The  lowest  percentages  are  amongst 
those  convicted  of  assault  and  bodily  harm,  murders, 
and  infanticide. 


THE   DATA    OF   CRIMINAL   ANTHROPOLOGY.      15 

For  France,  where  legal  statistics  are  remarkably- 
adapted  for  the  most  minute  inquiry,  I  have  drawn 
up  the  following  table  of  statistics  from  the  lists  of 
persons  convicted  at  the  assize  courts  and  correctional 
tribunals,  taking  an  average  of  the  years  1877-81, 
which  is  not  sensibly  affected  by  the  results  of  suc- 
ceeding years. 

It  will  be  seen  that  the  average  of  relapses  for 
crimes  against  the  person  is  higher  than  the  average 
for  the  most  serious  cases  of  murderous  and  indecent 
assault,  which  are  clearly  an  outcome  of  the  most 
anti-social  tendencies  (such  as  parricide,  murder,  rape, 
inflicting  bodily  harm  on  parents,  &c.).  Thus  homi- 
cide and  fatal  wounding,  though  relapse  is  very  fre- 
quent in  these  cases,  still  display  a  less  abnormal 
and  more  occasional  character  by  their  lower  position 
in  the  table,  as  shown  in  the  cases  of  infanticide,  con- 
cealment of  birth,  and  abandonment  of  infants.  As 
for  the  very  frequent  occurrence  of  relapse  in  special 
crimes,  such  as  assaults  on  officials  and  resistance  to 
authority,  which  rarely  come  before  the  assize  courts 
— though  even  there  they  tend  to  support  the  higher 
numbers  in  the  tribunals — these  are  offences  which 
may  also  be  committed  by  criminals  of  every  kind, 
and  which,  moreover,  depend  in  some  measure  on  the 
social  factor  of  police  organisation,  and  frequently 
on  the  psycho- pathological  state  of  particular  indi- 
viduals. 

The  somewhat  rare  occurrence  of  relapse  in  such  a 
grave  type  of  murder  as  poisoning  is  noteworthy. 
But  this  is  only  an  effect  of  the  special  psychology  of 
these  criminals,  as  I  have  explained  elsewhere. 


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THE   DATA   OF  CRIMINAL   ANTHROPOLOGY.      17 

Amongst  crimes  against  property,  the  most  fre- 
quent relapses  are  found  in  the  case  of  thieves  (not 
including  thefts  and  breaches  of  trust  by  domestic 
servants,  which  thus,  proving  their  more  occasional 
character,  confirm  the  agreement  of  statistics  with 
criminal  psychology).  The  same  thing  is  observed 
in  regard  to  forgers  of  commercial  documents  and  to 
fraudulent  bankrupts,  who  are  partly  drawn  into  crime 
under  the  stress  of  personal  or  general  crises.  And 
the  infrequency  of  relapse  amongst  postal  employees 
condemned  for  embezzlement,  and  amongst  customs 
officers  who  have  been  guilty  of  smuggling,  is  only  a 
further  confirmation  of  the  inducement  to  crime  by 
the  opportunities  met  with  in  each  case,  rather  than 
by  personal  tendencies. 

Amongst  minor  offences,  apart  from  that  evasion 
of  supervision  which  is  no  more  than  a  legal  con- 
dition, there  are,  both  in  France  and  in  Italy,  very 
frequent  cases  of  relapse  by  vagabonds  and  mendi- 
cants, which  is  a  consequence  of  social  environment, 
as  well  as  of  the  feeble  organisation  of  the  indi- 
viduals. Other  relapses  above  the  average,  included 
amongst  these  offences,  constitute  a  sort  of  accessory 
criminality,  existing  side  by  side  with  the  habitual 
criminality  of  thieves,  murderers,  and  the  like,  such  as 
drunkenness,  attacks  on  public  functionaries,  infrac- 
tions of  the  regulations  of  domicile,  &c. 

In  thefts  and  resistance  to  authorities,  relapse  is  less 
frequent  here  than  in  the  assize  courts,  for  in  the 
majority  of  these  minor  offences,  in  their  general 
forms,  there  is  a  greater  number  of  occasional  offences, 
as  is  also   the   case  with   bankruptcies,  defamation, 


l8  CRIMINAL   SOCIOLOGY. 

abuse,  rural   offences,  &c.,  which  demonstrate  their 
more  occasional  character  by  their  very  low  figures. 

Hence  the  statistics  of  general  and  specific  relapse 
indirectly  confirm  the  fact  that  criminals,  as  a  whole, 
have  no  uniform  anthropological  type ;  and  that 
the  bio-psychical  types  and  anomalies  belong  more 
especially  to  the  category  of  habitual  criminals  and 
those  born  into  the  criminal  class,  who,  after  all, 
are  the  only  ones  hitherto  studied  by  criminal  anthro- 
pologists. 

What,  then,  is  the  numerical  proportion  of  habitual 
criminals  to  the  aggregate  number  of  criminals  ? 

In  the  absence  of  direct  inquiry,  it  is  possible  to  get 
at  this  proportion  indirectly,  from  facts  of  two  kinds. 
In  the  first  place,  a  study  of  the  works  on  criminal 
anthropology  supplies  us  with  an  approximate  figure, 
since  the  biological  characteristics  united  in  indi- 
viduals, in  sufficient  number  to  create  a  criminal  type, 
are  met  with  in  between  forty  and  fifty  per  cent,  of 
the  total. 

And  this  conclusion  may  be  confirmed  by  other 
data  of  criminal  statistics. 

Whilst  the  statistics  of  relapse  give  us  a  very 
limited  number  of  crimes  and  offences  committed  by 
born  and  habitual  criminals,  science  and  criminal 
legislation  give  us  a  far  more  extended  classifica- 
tion. 

Ellero  reckoned  in  the  penal  code  of  the  German 
Empire  203  crimes  and  offences  ;  and  I  find  that  the 
Italian  code  of  1859  enumerates  about  180,  the  new 
code  about  200,  and  the  French  penal  code  about 
150,     Thus  the  kind  of  crimes  of  habitual  criminals 


THE  DATA   OF  CRIMINAL  ANTHROPOLOGY.      1 9 

would  only  be  about  one-tenth  of  the  complete  legal 
classification  of  crimes  and  offences. 

It  is  easy  indeed  to  suppose  that  born  and  habitual 
criminals  do  not  generally  commit  political  crimes 
and  offences,  nor  offences  connected  with  the  press, 
nor  against  freedom  of  worship,  nor  in  corruption  of 
public  functionaries,  nor  misuse  of  title  or  authority  ; 
nor  calumny,  making  false  attestations  or  false 
reports  ;  nor  adultery,  incest,  or  abduction  of  minors  ; 
nor  infanticide,  abortion,  or  palming  of  children  ;  nor 
betrayal  of  professional  secrets ;  nor  bankruptcy 
offences,  nor  damage  to  property,  nor  violation  of 
domicile,  nor  illegal  arrests,  nor  duels,  nor  defama- 
tion, nor  abuse.  I  say  generally ;  for,  as  there  are 
occasional  criminals  who  commit  the  offences  charac- 
teristic of  habitual  criminality,  such  as  homicides, 
robberies,  rapes,  &c.,  so  there  are  born  criminals  who 
sometimes  commit  crimes  out  of  their  ordinary  course. 

It  is  now  necessary  to  add  a  few  statistical  data  in 
respect  of  the  classification  of  crime,  which  I  take, 
like  the  others,  from  the  essay  already  mentioned. 


Habitual  Criminality 

(homicide,  theft,  conspiracy,  rape, 
incendiarism,   vagrancy,  swind- 
ling, forgery). 

Italy. 

France. 

Belgium. 

8 

< 

B 

i 

"5 

< 

4 

3 

i 

< 

c 
3 

1 

Proportion    of    the   persons 
convicted  of  these  crimes 
and  offences  to   the   total 
number  of  convictions    ... 

p.  c. 

84 

p.  c. 

32 

p.  c. 
38 

p.  c. 
90 

p.  c. 
34 

p.  c. 
35 

p.  c. 

86 

p.  c. 

30 

p.  c. 

30 

20  CRIMINAL  SOCIOLOGY. 

That  is  to  say,  habitual  criminality  would  be  repre- 
sented, in  Italy,  by  about  40  per  cent,  of  the  total 
number  of  condemned  persons,  and  by  somewhat  less 
in  France  and  Belgium.  This  would  be  accounted 
for  in  Belgium  by  the  exclusion  of  vagrancy ;  but  the 
difference  is  virtually  due  to  the  greater  frequency  in 
Italy  of  certain  crimes,  such  as  homicide,  highway 
robbery  with  violence,  and  conspiracies. 

Further,  it  is  apparent  that  in  all  these  countries 
the  types  of  habitual  criminality,  with  the  exception 
of  thefts  and  vagrancy,  are  in  greater  proportion  at 
the  assizes,  on  account  of  their  serious  character. 

The  actual  totals,  however,  are  larger  at  the 
tribunals,  for  as,  in  the  scale  of  animal  life,  the 
greatest  fecundity  belongs  to  the  lower  and  smaller 
forms,  so  in  the  criminal  scale,  the  less  serious 
offences  (such  as  simple  theft,  swindling,  vagrancy, 
&c.)  are  the  more  numerous.  Thus,  out  of  the  total 
of  38  per  cent,  in  Italy,  32  belong  to  the  tribunals 
and  6  to  the  assizes  ;  out  of  35  per  cent,  in  France, 
33  belong  to  the  tribunals  and  2  to  the  assizes ;  and 
out  of  30  per  cent  in  Belgium,  29  belong  to  the 
tribunals  and  i  to  the  assizes.  This  also  is  partly 
accounted  for  by  legislative  distinctions  as  to  the 
respective  jurisdictions  of  these  courts. 

As  to  the  particulars  of  the  totals,  it  is  found  that 
thefts  are  the  most  numerous  types  in  Italy  (20  per 
cent),  in  France  (24  per  cent),  in  Belgium  (23  per 
cent.),  and  in  Prussia  (37  per  cent,  including  breaches 
of  trust).! 

*  Starke,  "Verbrechen  und  Verbrecher  in  Preussen,"  Berlin,  1884, 
p.  92. 


THE  DATA   OF  CRIMINAL   ANTHROPOLOGY,      21 

After  theft,  the  most  numerous  in  Italy  are  vagrancy 
(5  per  cent),  homicides  (4  per  cent),  swindling  (3  per 
cent),  forgery  (-9  per  cent),  rape  (•4  per  cent),  con- 
spiracy (-4  per  cent),  and  incendiarism  ('2  per  cent). 

In  France  and  Belgium  we  find  the  same  relative 
frequency  of  vagrancy  and  swindling  ;  but  homicide, 
incendiarism,  and  conspiracy  are  less  frequent,  whilst 
rape  is  more  common  in  France  ("5  per  cent)  and  in 
Belgium  (i  per  cent). 

Such  then  are  the  most  frequent  forms  of  habitual 
criminality  in  the  generality  of  condemned  persons  ; 
and  it  will  be  useful  now  to  contrast  the  more  fre- 
quent forms  of  occasional  criminality.  For  Italy  the 
only  judicial  statistics  which  are  valuable  for  detailed 
inquiry  are  those  of  1863,  1869-72.  For  France, 
every  volume  of  the  admirable  series  of  criminal 
statistics  may  be  utilised. 

It  will  be  seen  that  the  frequency  of  these  occa- 
sional crimes  and  offences  in  Italy  and  in  France 
is  very  variable,  though  assaults  and  wounding, 
resistance  ,to  authorities,  damage,  defamation  and 
abuse,  are  the  most  numerous  in  both  countries. 

The  proportion  of  each  offence  to  the  total  also 
varies  considerably,  not  only  through  a  difference 
of  legislation  between  Italy  and  France  in  regard  to 
poaching,  drunkenness,  frauds  on  refreshment-house 
keepers,  and  so  forth,  but  also  by  reason  of  the 
different  condition  of  individuals  and  of  society  in 
the  two  countries.  Thus  assaults  and  wounding, 
which  in  Italy  comprise  23  per  cent  of  the  total  of 
convictions,  reach  in  France  no  more  than  14  per 
cent,  whilst  resistance  to  the  authorities,  &c.,  which 


Crimes  and  Offences  of  Greatest 
Frequency 

(not  including  tliose  of  Habitual  Criminals). 


Wilful  Assault  and  Wounding 

Illegally  carrying  Arms        

Resistance  to  Authority,  Assaults  and 
Violence  against  Public  Function- 
aries     

Injury  to  Property         

Defamation  and  Abuse 

Written  or  Spoken  Threats 

Illegal  Games        

Political  Crimes  and  Offences    

Press  Crimes  and  Offences 

Embezzlement,  Corruption,  Malfeasance 
of  Public  Functionaries    

Escape  from  Detention       

False  Witness        

Violation  of  Domicile 

Calumny         

Exposure,  Palming  or  "  Suppression  " 
of  Infants 

Bankruptcy  Offences    

Offences  against  Religion  and  Ministers 
of  Religion        

Duelling 

Abortion         

Offences  against  the  Game  Laws 

Drunkenness 

Offences  against   Public  Decency 

Adultery         

Offences  against  Morality,  with  In- 
citement to  Immorality 

Involuiitaiy  Homicide 

,,  Wounding       

„  Incendiarism 

Illegal  Practising  of  Medicine  and 
Surgery      

Frauds  on  Keepers  of  Refreshment 
Houses       

Rural  Offences      


Yearly  Average  of  Condemned  Persons. 


Italy,  1863-72. 


p.  c. 
10 


Y^aily  Average  of  Convictions, 
Gross  Totals 


317 

•4 


6,273 


5 
2 
1-8 

I '4 
I 


43.584 


p.  c 
24 

7 


4 
2 
1-6 

I  "2 

•8 
•2 

•4 


France,  1877-81. 


p.  c. 
3 


49,857 


•09 


•2 
1-3 


•09 


3.300 


p- 
14 


•3 


10 

'1-6 

1-6 

•2 

a    -I 
4    -2 

•6 


•10 

•9 

•08 

•08 

•I 

•I 

■5 

•6 

•07 

•07 



•01 

13 

127 

1*5 

I '5 

1-8 

17 

•5 

•5 

•2 

•2 

•2 

•2 

•6 

•6 

•3 

•2 

•2 

•2 

1-4 

1-4 

6 

'b 

163,997 

167,297 

«  l)eva«tation  of  crops,  destruction  offences,  *  Unauthorised  gaminghouses;  secret  lotteries. 
3  An  exceptional  figure,  owing  to  528  conviction*  in  1863,  whilst  the  average  of  the  other  years  was 
nine  convictioiu.    4  Electoral  ofiences. 


THE  DATA   OF  CRIMINAL  ANTHROPOLOGY.      23 

are  4  per  cent,  in  Italy,  touch  9  per  cent  in  France. 
Sexual  crimes  and  offences  (as  we  saw  in  the  case  of 
rape),  such  as  abortion,  adultery,  indecent  assaults, 
and  incitement  to  immorality,  which  in  Italy  present 
very  small  and  negligible  figures,  are  more  frequent 
in  France.  Whilst  the  illegal  carrying  of  arms, 
threats,  false  witness,  escape  from  detention,  viola- 
tions of  domicile,  calumny,  are  of  greater  frequency 
in  Italy  than  in  France,  the  contrary  is  true  of 
bankruptcy  offences,  political  and  press  crimes  and 
offences,  on  account  of  a  manifest  difference  of  the 
moral,  economic,  and  social  conditions  of  the  two 
countries,  which  are  plainly  discernible  behind  these 
apparently  dry  figures. 

In  addition  to  this  demonstration,  we  have  given 
anthropological  and  statistical  proofs  of  the  funda- 
mental distinction  between  habitual  and  occasional 
criminals,  which  had  been  pointed  out  by  many 
observers,  but  which  had  hitherto  remained  a  simple 
assertion  without  manifest  consequences. 

This  same  distinction  ought  to  be  not  only  the 
basis  of  all  sociological  theory  concerning  crime,  but 
also  a  point  of  departure  for  other  distinctions  more 
precise  and  complete,  which  I  set  forth  in  my  pre- 
vious studies  on  criminals,  and  which  were  subse- 
quently reproduced,  with  more  or  less  of  as:;ent,  by 
all  criminal  sociologists. 

In  the  first  place,  it  is  necessary  to  distinguish, 
amongst  habitual  criminals,  those  who  present  a 
conspicuous  and  clinical  form  of  mental  aberration^ 
which  accounts  for  their  anti-social  activity. 


24  CRIMINAL   SOCIOLOGY. 

In  the  second  place,  amongst  habitual  criminals 
who  are  not  of  unsound  mind,  however  little  the 
inmates  of  prisons  may  have  been  observed  with 
adequate  ideas  and  experience,  there  is  a  clear 
indication  of  a  class  of  individuals,  physically  or 
mentally  abnormal,  induced  to  crime  by  inborn 
tendencies,  which  are  manifest  from  their  birth,  and 
accompanied  by  symptoms  of  extreme  moral  in- 
sensibility. Side  by  side  with  these,  another  class 
challenges  attention,  of  individuals  who  have  also 
been  criminals  from  childhood,  and  who  continue  to 
be  so,  but  who  are  in  a  special  degree  a  product  of 
physical  and  social  environment,  which  has  per- 
sistently driven  them  into  the  criminal  life,  by  their 
abandonment  before  and  after  the  first  offence,  and 
which,  especially  in  the  great  towns,  is  very  often 
forced  upon  them  by  the  actual  incitement  of  their 
parents. 

Amongst  occasional  criminals,  again,  a  special 
category  is  created  by  a  kind  of  exaggeration  of  the 
characteristics,  mainly  psychological,  of  the  type  itself- 
In  the  case  of  all  occasional  criminals,  the  crime  is 
brought  about  rather  by  the  effects  of  environment 
than  by  the  active  tendencies  of  the  individual ;  but 
whilst  in  most  of  these  individuals  the  deciding  cause 
is  only  a  circumstance  affecting  all  alike,  with  a  few 
it  is  an  exceptional  constraint  of  passion,  a  sort  of 
psychological  tempest,  which  drives  them  into 
crime. 

Thus,  then,  the  entire  body  of  criminals  may  be 
classed  in  five  categories,  which  as  early  as  1880 
I    described    as   criminal   madmen,   born   criminals, 


THE   DATA    OF   CRIMINAL   ANTHROPOLOGY.       2$ 

criminals  by  contracted  habits,  occasional  criminals, 
and  criminals  of  passion. 

As  already  observed,  criminal  anthropology  will 
not  finally  establish  itself  until  it  has  been  developed 
by  biological,  psychological,  and  statistical  mono- 
graphs on  each  of  these  categories,  in  such  a  manner 
as  to  present  their  anthropological  characteristics 
with  greater  precision  than  they  have  hitherto 
attained.  So  far,  observers  continue  to  give  us 
the  same  characteristics  for  a  large  aggregate  of 
criminals,  classifying  them  according  to  the  form 
of  their  crime  rather  than  according  to  their  bio- 
social  type.  In  Lombroso's  work,  for  instance,  or 
in  that  of  Marro  (and  to  some  extent  even  in  my 
work  on  homicide),  the  characteristics  are  stated 
for  a  total,  or  for  legal  categories  of  criminals,  such 
as  murderers,  thieves,  forgers,  and  so  on,  which 
include  born  criminals,  occasional  and  habitual 
criminals,  and  madmen.  The  result  is  a  certain 
measure  of  inconsistency,  according  to  the  pre- 
dominance of  one  type  or  the  other  in  the  aggre- 
gate of  criminals  under  observation.  This  also 
contributes  to  render  the  conclusions  of  criminal 
anthropology  less  evident. 

Nevertheless,  we  may  sum  up  the  inquiries  which 
have  been  made  up  to  the  present  time  ;  and  in 
particular  we  may  now  point  out  the  general  charac- 
teristigs  of  the  five  classes  of  criminals,  in  accordance 
with  my  personal  experience  in  the  observation  of 
criminals.  It  is  to  be  hoped  that  successive  observa- 
tions of  a  more  methodical  kind  will  gradually  rein- 
force the  accuracy  of  this  classification  of  symptoms. 


26  CRIMINAL   SOCIOLOGY. 

In  the  first  place,  it  is  evident  that  in  a  classifi- 
cation not  exclusively  biological,  if  it  is  to  form 
the  anthropological  basis  of  criminal  sociology, 
criminals  of  unsound  mind  must  in  all  fairness  be 
included. 

The  usual  objection,  recently  repeated  by  M. 
Joly  ("  Le  Crime,"  p.  62),  which  holds  the  term 
"  criminal  madness "  to  be  self-contradictory,  since 
a  madman  is  not  morally  responsible,  and  therefore 
cannot  be  a  criminal,  is  not  conclusive.  We  main- 
tain that  responsibility  to  society,  the  only  re- 
sponsibility common  to  all  criminals,  exists  also  for 
criminals  of  unsound  mind. 

Nor,  again,  is  it  correct  to  say,  with  M.  Bianchi, 
that  mad  criminals  should  be  referred  to  psychiatry, 
and  not  to  criminal  anthropology  ;  for,  though 
psychiatry  is  concerned  with  mad  criminals  in  a 
psycho-pathological  sense,  this  does  not  prevent 
criminal  anthropology  and  sociology  from  also  con- 
cerning themselves  with  the  same  subjects,  in  order 
to  constitute  the  natural  history  of  the  criminal,  and 
to  suggest  remedies  in  the  interest  of  society. 

As  for  criminals  of  unsound  mind,  it  is  necessary 
to  begin  by  placing  in  a  separate  category  such  as 
cannot,  after  the  studies  of  Lombroso  and  the  Italian 
school  of  psychiatry,  be  distinguished  from  the  born 
criminals  properly  so-called.  These  are  the  persons 
tainted  with  a  form  of  insanity  which  is  known  under 
various  names,  from  the  "  moral  insanity "  of  Prit- 
chard  to  the  "  reasoning  madness  "  of  Verga.  Moral 
insanity,  illustrated  by  the  works  of  Mendel,  Legrand 
du  SauUe,  Maudsley,  Krafft-Ebing,  Savage,  Hugues, 


THE  DATA   OF  CRIMINAL   ANTHROPOLOGY.       27 

Hollander,  Tamburini,  Bonvecchiato,  which,  with  the 
lack  or  atrophy  of  the  moral  or  social  sense,  and  of 
apparent  soundness  of  mind,  is  properly  speaking  only 
the  essential  psychological  condition  of  the  born 
criminal. 

Beyond  these  morally  insane  people,  who  are  very 
rare  —  for,  as  Krafift-Ebing  and  Lombroso  have 
pointed  out,  they  are  found  more  frequently  in 
prisons  than  in  mad-houses — there  is  the  unhappily 
large  body  of  persons  tainted  by  a  common  and 
clinical  form  of  mental  alienation,  all  of  whom  are 
apt  to  become  criminal. 

The  whole  of  these  criminals  of  unsound  mind 
cannot  be  included  in  a  single  category  ;  and  such, 
indeed,  is  the  opinion  expressed  by  Lombroso,  in 
the  second  volume  of  the  fourth  edition  of  his  work, 
after  his  descriptive  analysis  of  the  chief  forms  of 
mental  alienation.  As  a  matter  ot  fact,  not  only 
are  the  organic,  and  especially  the  psychological, 
characteristics  of  criminal  madmen  sometimes 
identical  with  and  sometimes  opposed  to  those  of 
born  and  occasional  criminals,  but  these  very  charac- 
teristics vary  considerably  between  the  different  forms 
of  mental  alienation,  in  spite  of  the  identity  of  the 
crime  committed. 

It  is  further  to  be  observed,  in  respect  of  criminal 
madmen,  that  this  category  also  includes  all  the 
intermediary  types  between  complete  madness  and 
a  rational  condition,  who  remain  in  what  Maudsley 
has  called  the  "middle  zone."  The  most  frequent 
varieties  in  the  criminality  of  these  partially  insane 
persons,   or    "  mattoides,"    are    the    perpetrators    of 


28  CRIMINAL   SOCIOLOGY, 

attacks  upon  statesmen,  who  are  generally  men  with 
a  grievance,  irascible  men,  writers  of  insane  docu- 
ments, and  the  like,  such  as  Passanante,  Guiteau, 
and  Maclean. 

In  the  same  category  are  those  who  commit  terrible 
crimes  without  motive,  and  who  nevertheless,  accord- 
ing to  the  complacent  psychology  of  the  classical 
school,  would  be  credited  with  a  maximum  of  moral 
soundness. 

Again,  there  are  the  necrophiles,  like  Sergeant 
Bertrand,  Verzeni,  Menesclou,  and  very  probably  the 
undetected  "Jack  the  Ripper"  of  London,  who  are 
tainted  with  a  form  of  sexual  psychopathy.  Yet 
again  there  are  such  as  are  tainted  with  hereditary 
madness,  and  especially  the  epileptics  and  epileptoids, 
who  may  also  be  assigned  to  the  class  of  born 
criminals,  according  to  the  plausible  hypothesis  of 
Lombroso  as  to  the  fundamental  identity  of  con- 
genital criminality,  moral  madness,  and  epilepsy.  I 
have  always  found  in  my  own  experience  that  out- 
rageous murders,  not  to  be  explained  according  to 
the  ordinary  psychology  of  criminals.,  are  accompanied 
by  psychical  epilepsy,  or  larvea. 

Born  or  instinctive  criminals  are  those  who  most 
frequently  present  the  organic  and  psychological 
characteristics  established  by  criminal  anthropology. 
These  are  either  savage  or  brutal  men,  or  crafty  and 
idle,  who  draw  no  distinction  between  homicide, 
robbery  or  other  kinds  of  crime,  and  honest  industry. 
"  They  are  criminals  just  as  others  are  good  working- 
men,"  says  Fregier ;  and,  as  Romagnosi  put  it,  actual 


THE   DATA    OF  CRIMINAL   ANTHROPOLOGY.      29 

punishment  affects  them  much  less  than  the  menace 
of  punishment,  or  does  not  affect  them  at  all,  since 
they  regard  imprisonment  as  a  natural  risk  of  their 
occupation,  as  masons  regard  the  fall  of  a  roof,  or 
as  miners  regard  fire-damp.  "  They  do  not  suffer 
in  prison.  They  are  like  a  painter  in  his  studio, 
dreaming  of  their  next  masterpiece.  They  are  on 
good  terms  with  their  gaolers,  and  even  know  how  to 
make  themselves  useful." ' 

The  born  criminals  and  the  occasional  criminals 
constitute  the  majority  of  the  characteristic  and 
diverse  types  of  homicide  and  thief.  Prison  governors 
call  them  "gaol-birds."  They  pass  on  from  the  police 
to  the  judge  and  to  the  prison,  and  from  the  prison  to 
the  police  and  to  the  judge,  with  a  regularity  which 
has  not  yet  impaired  the  faith  of  law-makers  in  the 
efficacy  of  punishment  as  a  cure  for  crime.^ 

No  doubt  the  idea  of  a  born  criminal  is  a  direct 
challenge  to  the  traditional  belief  that  the  conduct  of 
every  man  is  the  outcome  of  his  free  will,  or  at  most 
of  his  lack  of  education  rather  than  of  his  original 
physio-psychical  constitution.  But,  in  the  first  place, 
even  public  opinion,  when  not  prejudiced  in  favour  of 
the  so-called  consequences  of  irresponsibility,  recog- 
nises in  many  familiar  and  everyday  cases  that  there 
are  criminals  who,  without  being  mad,  are  still  not  as 
ordinary  men  ;  and  the  reporters  call  them  "  human 
tigers,"  "  brutes,"  and  the  like.  And  in  the  second 
place,  the  scientific  proofs  of  these  hereditary  tenden- 

»  Moreau,  "  Souvenirs  de  la  petite  at  grande  Roquette,"  Paris, 
1884,  ii.  440. 

'  Wayland,  "  The  Incorri£jible,"  in  the  Jmmal  of  Mental  Scienci, 
1888.     Sichart,  "  Criminal  Incorrigibles." 

4 


30  CRIMINAL   SOCIOLOGY. 

cies  to  crime,  even  apart  from  the  clinical  forms  of 
mental  alienation,  are  now  so  numerous  that  it  is  use- 
less to  insist  upon  them  further. 

The  third  class  is  that  of  the  criminals  whom,  after 
my  prison  experience,  I  have  called  criminals  by 
contracted  habit  These  are  they  who,  not  pre- 
senting the  anthropological  characteristics  of  the 
born  criminals,  or  presenting  them  but  slightly, 
commit  their  first  crime  most  commonly  in  youth, 
or  even  in  childhood — almost  invariably  a  crime 
against  property,  and  far  more  through  moral  weak- 
ness, induced  by  circumstances  and  a  corrupting 
environment,  than  through  inborn  and  active  ten- 
dencies. After  this,  as  M.  Joly  observes,  either 
they  are  led  on  by  the  impunity  of  their  first 
offences,  or,  more  decisively,  prison  associations  de- 
bilitate and  corrupt  them,  morally  and  physically, 
the  cell  degrades  them,  alcoholism  renders  them 
stupid  and  subject  to  impulse,  and  they  continually 
fall  back  into  crime,  and  become  chronically  prone  to 
it  And  society,  which  thus  abandons  them,  before 
and  after  they  leave  their  prison,  to  wretchedness, 
idleness,  and  temptations,  gives  them  no  assistance  in 
their  struggle  to  gain  an  honest  livelihood,  even  when 
it  does  not  thrust  them  back  into  crime  by  harassing 
police  regulations,  which  prevent  them  from  finding  or 
keeping  honest  employment^ 

Of  those  criminals  who  begin  by  being  occasional 

criminals,  and  end,  after  progressive  degeneration,  by 

exhibiting  the  features  of  the  born  criminals,  Thomas 

More  said,  "  What  is  this  but  to  make  thieves  for  the 

'  Fliche,  "  Comment  en  devient  Criminel,"  Paris,  i££6. 


THE  DATA    OF   CRIMINAL   ANTHROPOLOGY.      31 

pleasure  of  hanging  them  ?"  And  it  is  just  this  class 
of  criminals  whom  measures  of  social  prevention  might 
reduce  to  a  minimum,  for  by  abolishing  the  causes  we 
abolish  the  effects. 

Apart  from  their  organic  and  psychological 
characteristics,  innate  or  acquired,  there  are  two 
bio-sociological  symptoms  which  seem  to  me  to 
be  common,  though  for  distinct  reasons,  to  born 
criminals  and  habitual  criminals.  I  mean  precocity 
and  relapse.  The  occasional  crime  and  the  crime  of 
passion  do  not,  as  a  rule,  occur  before  manhood,  and 
rarely  or  never  lead  to  relapse. 

Here  are  a  few  figures  concerning  precocity, 
derived  from  international  prison  statistics: — 


Prisoners  under  20  years  of  age. 

Male. 

Female. 

p.  c. 

p.  c. 

Italy  (1871-6)        

8-8 

6-8 

France  ('72-5) 

10 

7-6 

Prussia  ('71-7 — not  over  19  years) 

2-8 

2-6 

Austria  ('72-5)      

9-6 

IO-6 

Hungary  ('72-6)    

4-2 

9 

England  ('72-7 — not  over  24)    ... 

27-4 

145 

Scotland  {'72-7)    

20 

7-8 

Ireland  ('72-7)      

9 

3  "2 

Belgium  {'74-S)     

20 -8 

Holland  ('72-7)    

22-8 

37 

Sweden  ('73-7)     

197 

17 

Switzerland  ('74) 

6-6 

7 

Denmark  ('74-5) 

9-9 

9-6 

More  recent  figures  show  that  the  yearly  average 
in  France,  for  1876-80,  out  of  4,374  persons  brought 
to  trial,  was  i  per  cent,  under  sixteen  years  of  age, 
and  17  per  cent,  between  sixteen  and  twenty-one  ; 


32  CRIMINAL   SOCIOLOGY. 

whilst  in  1886  the  same  percentages  were  "60  and 
14.  Out  of  146,217  accused  before  the  tribunals  there 
were  4  per  cent,  under  sixteen,  and  14  per  cent 
between  sixteen  and  twenty-one.  Out  of  25,135 
females  there  were  4  per  cent,  under  sixteen,  and 
1 1  per  cent,  between  sixteen  and  twentj'-one  ;  whilst 
in  1886  the  percentages  were  3  and  14  of  males,  2'5 
and  14  of  females. 

In  Prussia,  of  persons  accused  of  crimes  and 
offences  in  1860-70,  4  per  cent,  were  under  eighteen 
years. 

In  Germany,  of  persons  condemned  in  1886,  3  per 
cent,  were  between  twelve  and  fifteen,  6  per  cent, 
between  fifteen  and  eighteen,  and  16  per  cent, 
between  eighteen  and  twenty-one  years. 

In  Italy,  out  of  5,189  persons  condemned  at  the 
assizes  in  1887,  3  per  cent,  were  between  fourteen 
and  eighteen,  and  12  per  cent,  between  eighteen  and 
twenty-one.  Out  of  65,624  tried  before  the  tribunals, 
1*2  per  cent,  were  under  fourteen,  5  per  cent,  were 
between  fourteen  and  eighteen,  and  13  per  cent. 
between  eighteen  and  twenty-one.  There  is  a  con- 
tinual increase  of  precocious  criminals  in  Italy. 
Prisoners  condemned  at  the  assizes  under  the  age 
of  twenty-one  stood  at  15  per  cent  from  1880  to 
1887,  whilst  those  of  a  similar  age  who  were  tried 
before  the  tribunals  rose  from  17  to  20  per  cent. 

To  these  numerical  data  may  be  added  others  ot 
a  qualificative  character,  showing  that  precocity  is 
most  frequent  in  respect  of  the  natural  crimes  and 
offences  which  are  usually  observed  amongst  born 
and  habitual  criminals. 


THE   DATA   OF  CRIMINAL  ANTHROPOLOGY.      33 

In  France  the  younger  prisoners  in  1882  had  been 
sentenced  in  the  following  proportions  : — 


For  murder  and  poisoning 

,,    homicide,  assaults,  and  wounding 

,,    incendiarism 

,,    indecent  assault 

,,   specified  thefts,  forgery,  uttering 

false  coin 

„    simple  theft,  swindling       

,,    mendicity  and  vagrancy      

,,    other  crimes  and  oftences 

„   defiance  of  parents      


Male. 

Female. 

•09  per  cent. 

•5  per  cent 

1-6 

1-5       .. 

1-8 

2 

3-5 

11-8       „ 

5-2 

2-4       ,. 

6o-8 

497 

23 

205        „ 

27 

•« 

I 

IO-5       „ 

These  figures,  showing  a  greater  frequency  amongst 
females  of  precocious  crimes  against  the  person,  and 
amongst  males  against  property,  are  approximately 
repeated  in  Switzerland,  where  young  prisoners  in 
1870-74  had  been  sentenced  in  these  proportions : — 


For  crimes  and  offences  against  the  person  . 

.     12' I  per  cent 

,.                 ,,                 >,               morality 

•       57 

,,    incendiarism       

4'3        .. 

,,   theft    

•     655        » 

,,    swindling 

5-4 

,,    forgery        

1-9 

„    vagrancy     

.      4-6        „ 

The  judicial   statistics  of  France  and    Italy  give 
these  proportions : — 


34 


CRIMINAL   SOCIOLOGY. 


Assize  Courts. 


Homicide        

Murder(and  robbery  with  homicide) 

Parricide 

Infanticide       

Imprisonment 

Wilful  wounding;  (followed  by  death) 

Abortion 

Rape  and  indecent  assault  on  adults 
„  „  children 

Resistance  to  and  attacks  on  public 
functionaries        

Incendiarism 

False  money 

Forgery  in  public  and  private  docu- 
ments   

Extortion,  highway  robbery  with 
violence        

Specified  and  simple  theft     

Unintentional  wounding       


Total  of  condemned  and  accused 


Italy— 1866. 
Condemned. 


Under 
14- 


p.  c. 

14 


14 


14 
14 
28 


p.  c. 

25 

II 

•5 

I 

19 


9 
19 


179 


p.  c. 

24 

10 


24 
7 


7 
16 


475 


France — 1386 
Accused. 


Under 


p.  c. 

37 
37 
7-5 


37 


3-7 
3-7 


41 


p.  c 
37 
6 

•9 
6 
•I 

3-8 
II 

1-2 
II 

•3 

3"i 
2-5 

2*1 

3-6 
51 


27      641 


The  French  statistics  for  the  tribunals — no  complete 
Italian  statistics  being  available,  are  as  follows  : — 


Correctional  Tribunals. 

France  — 1886. 

Male. 

Female. 

Offences. 

Under  16. 

16 — 21. 

Underi6. 

16 — 21. 

per  cent. 

percent. 

per  cent. 

per  cent. 

Resistance  to  authorities      

•2 

2-2 

•I 

I-I 

Assaults  on  public  functionaries  ... 

•8 

5 

•7 

4*1 

Vagrancy         

4"4 

1 1  "2 

32 

5-5 

Mendicity       

4-8 

4 

125 

3-6 

Wilful  wounding    

5'i 

i8-5 

3-6 

II 

Unintentional  wounding       

•8 

7 

•I 

•I 

Offences  against  public  decency  ... 

1-6 

1-8 

31 

3  "3 

Defamation  and  abuse 

•I 

•2 

i"i 

1-6 

Theft       

57*5 

30 '4 

63 

54-3 

Frauds  on  refresliment-house  keepers 

•I 

2-1 

•I 

•6 

Swindling        

•5 

1*3 

2-4 

3 '3 

Breach  of  confidence     

•9 

I '3 

7 

1-2 

Injury  to  crojjs  and  plants    

Game-law  offences 

•5 

•3 

•3 

•5 

151 

14-2 

II 

•2 

Total  of  accused     

4.937 

24,811 

659 

2,821 

THE  DATA    OF  CRIMINAL   ANTHROPOLOGY.       35 

Here  we  have  a  statistical  demonstration  of  a  more 
frequent  precocity,  amongst  various  forms  of  crimi- 
nality, in  respect  of  inborn  tendencies  (murder  and 
homicide,  rape,  incendiarism,  specific  thefts),  or  in 
respect  of  tendencies  contracted  by  habit  (simple 
theft,  mendicity,  vagrancy). 

Also  this  characteristic  of  precocity  is  accompanied 
by  that  of  relapse,  which  accordingly  we  have  seen 
to  be  more  frequent  in  the  same  forms  of  natural 
criminality,  and  which  we  can  now  tabulate  in 
respect  of  its  persistency  in  these  born  and  habitual 
criminals. 

It  has  been  well  said  that  the  large  number  of 
relapsed  persons  who  are  brought  to  trial  year  after 
year  proves  that  thieves  ply  their  trade  as  a  regular 
calling ;  the  thief  who  has  once  tasted  prison  life  is 
sure  to  return  to  it.^  And  again,  there  are  very  few 
cases  in  which  a  man  or  a  woman  who  has  turned 
thief  ceases  to  be  one.  Whatever  the  reason  may  be, 
as  a  matter  of  fact  the  thief  is  rarely  or  never  reformed. 
When  you  can  turn  an  old  thief  into  an  honest  worker, 
you  may  turn  an  old  fox  into  a  house  dog.* 

We  must,  however,  read  these  testimonies  of 
practical  men,  which  could  easily  be  multiplied,  in 
the  light  of  our  distinction  between  incorrigible 
criminals,  who  are  so  from  their  birth,  and  such  as 
are  made  incorrigible  by  the  effect  of  their  prison 
and  social  environment.  The  former  could  scarcely 
be  reduced   in    number,  whilst   the   latter  could   be 

'  Quarterly  Revieiv,  187 1,  "The  London  Police." 
•  Thomson,  "The   Psychology   of  Criminals,"  Journal  0/  Mental 
Science  f  1870. 


36  CRIMINAL   SOCIOLOGY, 

considerably  diminished  by  the  penal  alternatives  of 
which  I  will  speak  later. 

The  following  statistics  of  relapse  are  quoted  from 
Yvernes,  "La  Recidive  en  Europe  "  (Paris,  1874)  : — 


Relapses.     ^^^^^^:^- 

Sweden— 1871. 
Thieves. 

France — 1 826-74. 

Accused 

and  brought 

to  trial. 

Italy— 1870. 

Accused 

and  brought 

to  trial. 

Once...     ...     38  per  cent. 

Twice       ...     18        ,, 

54  per  cent. 
28 

45  per  cent. 
20        ,, 

60  per  cent. 
30        ,. 

Three  times     44        „ 

18        „ 

35 

10        „ 

In  Prussia  (1878-82),  17  per  cent,  had  relapsed 
once,  16  per  cent,  twice,  16  per  cent,  three  times,  13 
per  cent,  four  times,  10  per  cent  five  times,  and  28 
per  cent,  six  times  or  oftener.^ 

At  the  Prisons  Congress  of  Stockholm  the  following 
figures  were  given  for  Scotland.  Out  of  a  total  of 
forty-nine  relapsed  prisoners,  16  percent,  had  relapsed 
once,  13  per  cent,  twice  or  three  times,  6  per  cent, 
four  or  five  times,  6  per  cent,  from  six  to  ten  times, 
5  per  cent,  from  ten  to  twenty  times,  4  per  cent,  from 
twenty  to  fifty  times,  and  i  per  cent,  more  than  fifty 
times. 

At  the  meeting  of  the  Social  Science  Congress, 
held  at  Liverpool,  in  1876,  Mr.  Nugent  stated  that 
upwards  of  4,107  women  had  relapsed  four  times  or 
oftener,  and  that  many  of  them  were  classed  as 
incorrigible,  having  been  convicted  twenty,  forty,  or 
fifty  times,  whilst  one  had  been  convicted  130  times. 

The  judicial  statistics  of  Italy  for  1887  give  the 
following  results : — 

'  Starke,  "  Verbrechen  und  Verbrecher,"  Berlin,  1884,  p.  229. 


THE  DATA    OF  CRIMINAL   ANTHROPOLOGY.       37 


Italy— Convicted,  per  cent. 

Relapses. 

Justices  of 
Peace. 

Tribunals. 

Assizes. 

Once     

Two  to  five  times 
More  than  five  times ... 

57 

34 

9 

42 
40 
18 

50 
40 
10 

Actual  totals  of  relapses 

27,068 

16,240 

1,870 

I  have  found  from  my  inquiries  amongst  346 
condemned  to  penal  servitude  and  353  prisoners 
from  the  correctional  tribunals  the  following  per- 
centages : — 


Relapsed. 

Convicts. 

Imprisoned. 

Once 

832          . 

26 

Twice 

12-5 

..        i6-s 

3  tunes 

31 

14-6 

4     .. 

— 

IO-8 

5     » 

6-8 

6-6 

6     „ 

— 

5-2 

7         M 

1-6 

71 

8     „ 

— 

:.         2-8 

9     .. 

— 

2-8 

10    „ 

— 

23 

II     » 

— 

•9 

12     „ 

— 

•5 

13     » 

— 

•9 

14    .f* 

— 

1-4 

»5    » 

— 

•9 

20    „ 

— 

•5 

Actual  totals  of  relapses         128 


Chronic  relapse  is  naturally  less  frequent  in  the  case 
of  those  condemned  to  long  terms  ;  but  it  is  a  con- 
spicuous symptom  of  individual  and  social  pathology 
in  the  two  classes  of  born  and  habitual  criminals. 


38  CRIMINAL   SOCIOLOGY. 

Lombroso,  in  the  second  volume  of  his  work  on 
"  The  Criminal,"  denies  that  precocity  and  relapse 
are  characteristics  distinguishing  born  and  habitual 
from  occasional  criminals.  But  it  is  only  a  question 
of  terms.  He  considers  that  born  and  habitual 
criminals  confine  themselves  almost  exclusively  to 
serious  crime,  and  occasional  criminals  to  minor 
offences.  And  as  the  figures  which  I  have  given 
show  that  precocity  and  relapse  are  even  more 
frequent  for  minor  offences  than  for  crimes,  he 
thinks  that  they  contradict  instead  of  confirming 
my  conclusions. 

The  mere  seriousness  of  an  act  cannot  by  any 
means  divide  the  categories  of  criminals  ;  for  homi- 
cide as  well  as  theft,  assault  and  battery  as  well 
as  forgery,  may  be  committed,  though  in  different 
psychological  and  social  conditions,  as  easily  by 
born  and  habitual  criminals  as  by  occasional 
criminals  and  criminals  of  passion. 

Moreover,  the  figures  which  I  have  given  show  that 
precocity  and  relapse  are  mo.e  frequent  in  the  forms 
of  criminality  which,  apart  from  their  gravity,  are  the 
common  practices  of  born  and  habitual  criminals, 
such  as  murder,  homicide,  robbery,  rape,  &c.,  whilst 
they  are  far  more  uncommon,  even  if  tliey  can  be 
said  to  be  observed  at  all,  in  the  case  of  the  crimes 
and  offences  usually  committed  by  occasional  crimi- 
nals, such  as  infanticide,  and  certain  of  the  offences 
mentioned  above. 

It  remains  to  say  something  of  the  occasional 
criminals,  and  the  criminals  of  passion. 


THE   DATA   OF  CRIMINAL   ANTHROPOLOGY,       39 

The  latter  are  but  a  variety  of  the  occasional  crimi- 
nals, but  their  characteristics  are  so  specific  that  they 
may  be  very  readily  distinguished.  In  fact  Lombroso, 
in  his  second  edition,  supplementing  the  observations 
of  Despine  and  Bittinger,  separated  them  from  other 
criminals,  and  classified  them  according  to  their 
symptoms.  I  need  only  summarise  his  observa- 
tions. 

In  the  first  place,  the  criminals  who  constitute  the 
strongly  marked  class  of  criminals  by  irresistible 
impulse  are  very  rare,  and  their  crimes  are  almost 
invariably  against  the  person.  Thus,  out  of  71 
criminals  of  passion  inquired  into  by  Lombroso,  69 
were  homicides,  6  had  in  addition  been  convicted  of 
theft,  3  of  incendiarism,  and  i  of  rape. 

It  may  be  shown  that  they  number  about  5  per 
cent,  of  crimes  acjainst  the  person. 

They  are  as  a  rule  persons  of  previous  good 
behaviour,  sanguine  or  nervous  by  temperament,  of 
excessive  sensibility,  unlike  born  or  habitual  crimi- 
nals, and  they  are  often  of  a  neurotic  or  epileptoid 
temperament,  of  which  their  crimes  may  be,  strictly 
speaking,  an  unrecognised  consequence. 

Frequently  they  transgress  in  their  youth,  espe- 
cially in  the  case  of  women,  under  stress  of  a  passion 
which  suddenly  spurns  constraint,  like  anger,  or  out- 
raged love,  or  injured  honour.  They  are  highly 
emotional  before,  during,  or  after  the  crime,  which 
they  do  not  commit  treacherously,  but  openly,  and 
often  by  ill-chosen  methods,  the  first  that  present 
themselves.  Now  and  then,  however,  one  encounters 
criminals  of  passion  who  premeditate  a  crime,  and 


SlAii:uo.x.*-L^^.i^iJL, 


40  CRIMINAL   SOCIOLOGY. 

carry  it  out  treacherously,  either  by  reason  of  their 
colder  and  less  impulsive  temperament,  or  as  the  out- 
come of  preconceived  ideas  or  a  widespread  sentiment, 
in  cases  where  we  have  to  do  with  a  popular  form  of 
lawlessness,  such  as  the  vendetta. 

This  is  why  the  test  of  premeditation  has  no  abso- 
lute value  in  criminal  psychology,  as  a  distinction 
between  the  born  criminal  and  the  criminal  of 
passion  ;  for  premeditation  depends  especially  on 
the  temperament  of  the  individual,  and  is  exem- 
plified in  crimes  committed  by  both  anthropological 
types. 

Amongst  other  symptoms  of  the  criminal  of 
passion,  there  is  also  the  precise  motive  which  leads 
to  a  crime  complete  in  itself,  and  never  as  a  means  of 
attaining  another  criminal  purpose. 

These  offenders  immediately  acknowledge  their 
crime,  with  unassumed  remorse,  frequently  so  keen 
that  they  instantly  commit,  or  attempt  to  commit, 
suicide.  When  convicted — as  they  seldom  are  by  a 
jury — they  are  always  repentant  prisoners,  and 
amend  their  lives,  or  do  not  become  degraded,  so 
that  in  this  way  they  encourage  superficial  observers 
to  affirm  as  a  general  fact,  and  one  possible  in  all 
circumstances,  that  ameliorative  effect  of  imprison- 
ment which  is  really  a  mere  illusion  in  the  case  of 
the  far  more  numerous  classes  of  born  and  habitual 
criminals. 

In  these  same  oflfenders  we  very  rarely  observe,  if 
at  all,  the  organic  anomalies  which  create  a  criminal 
type.  And  even  the  psychological  characteristics  are 
much  slighter  in  countries  where  certain  crimes  of 


THE   DATA    OF  CRIMINAL   ANTHROPOLOGY.       4I 

passion  are  endemic,  almost  ranking  amongst  the 
customs  of  the  community,  like  the  homicides  which 
occur  in  Corsica  and  Sardinia  for  the  vindication  of 
honour,  or  the  political  assassinations  in  Russia  and 
Ireland. 

The  last  class  is  that  of  occasional  criminals,  who 
without  any  inborn  and  active  tendency  to  crime 
lapse  into  crime  at  an  early  age  through  the  tempta- 
tion of  their  personal  condition,  and  of  their  physical 
and  social  environment,  and  who  do  not  lapse  intc 
it,  or  do  not  relapse,  if  these  temptations  disappear. 

Thus  they  commit  those  crimes  and  offences  which 
do  not  indicate  natural  criminality,  or  else  crimes 
and  offences  against  person  or  property,  but  under 
personal  and  social  conditions  altogether  different 
from  those  in  which  they  are  committed  by  born  and 
habitual  criminals. 

There  is  no  doubt  that,  even  with  the  occasional 
criminal,  some  of  the  causes  which  lead  him  into 
crime  belong  to  the  anthropological  class  ;  for  ex- 
ternal causes  would  not  suffice  without  individual 
predispositions.  For  instance,  during  a  scarcity  or  a 
hard  winter,  not  all  of  those  who  experience  privation 
have  recourse  to  theft,  but  some  prefer  to  endure 
want,  however  undeserved,  without  ceasing  to  be 
honest,  whilst  others  are  at  the  utmost  driven  to  beg 
their  food ;  and  amongst  those  who  yield  to  the 
suggestion  of  crime,  some  stop  short  at  simple  theft, 
whilst  others  go  as  far  as  robbery  with  violence. 

But  the  true  difference  between  the  born  and  the 
occasional   criminal    is   that,   with    the    former,   the 


42  CRIMINAL   SOCIOLOGY. 

external  cause  is  less  operative  than  the  internal 
tendency,  because  this  tendency  possesses,  as  it  were, 
a  centrifugal  force,  driving  the  individual  to  commit 
crime,  whilst,  for  the  occasional  criminal,  it  is  rather 
a  case  of  feeble  power  of  resistance  against  external 
causes,  to  which  most  of  the  inducement  to  crime  is 
due. 

The  casual  provocation  of  crime  in  the  born 
criminal  is  generally  the  outcome  of  an  instinct  or 
tendency  already  existing,  and  far  more  of.a  pretext 
than  an  occasion  of  crime.  With  the  occasional 
criminal,  on  the  other  hand,  it  is  the  casual  provoca- 
tion which  matures,  no  doubt  in  a  favouring  soil, 
the  growth  of  criminal  tendencies  not  previously 
developed. 

For  this  reason  Lombroso  calls  the  occasional 
criminals  "  criminaloids,"  in  order  to  show  precisely 
that  they  have  a  distinctly  abnormal  constitution, 
though  in  a  less  degree  than  the  born  criminals,  just 
as  we  have  the  metal  and  the  metalloid,  the  epileptic 
and  the  epileptoid. 

And  this,  again,  is  the  reason  why  Lombroso's 
criticisms  on  my  description  of  occasional  criminals 
are  lacking  in  force.  He  says,  as  Benedikt  said  at 
the  Congress  at  Rome,  that  all  criminals  are  crimi- 
nals by  birth,  so  that  there  is  no  such  thing  as  an 
occasional  criminal,  in  the  sense  of  a  7iormal  indi- 
vidual casually  launched  into  crime.  But  I  have 
not,  any  more  than  Garof:ilo,  drawn  such  a  picture 
of  the  occasional  criminal,  for  as  a  matter  of  fact  I 
have  said  precisely  the  opposite,  as  indeed  Lombroso 
himself  acknowledges   a   little  further    on  (ii.  422), 


THE   DATA    OF  CRIMINAL   ANTHROPOLOGY.      43 

namely,  that  between  the  born  and  the  occasional 
criminal  there  is  only  a  difference  of  degree  and 
modality,  as  in  all  the  criminal  classes. 

To  cite  a  few  details  of  criminal  psychology,  it 
may  be.  stated  that  of  the  two  physiological  condi- 
tions of  crime,  moral  insensibility  and  improvidence, 
occasional  crime  is  especially  due  to  the  latter,  and 
inborn  and  habitual  crime  to  the  former.  With  the 
born  criminal  it  is,  above  all,  the  lack  or  the  weakness 
of  moral  sense  which  fails  to  withstand  crime,  whereas 
with  the  occasional  criminal  the  moral  sense  is  almost 
normal,  but  inability  to  realise  beforehand  the  conse- 
quences of  his  act  causes  him  to  yield  to  external 
influences. 

Every  man,  however  pure  and  honest  he  may  be, 
is  conscious  now  and  then  of  a  transitory  notion  of 
some  dishonest  or  criminal  action.  But  with  the 
honest  man,  exactly  because  he  is  physically  and 
morally  normal,  this  notion  of  crime,  which  simul- 
taneously summons  up  the  idea  of  its  grievous  con- 
sequences, glances  off  the  surface  of  the  normal 
conscience,  and  is  a  mere  flash  without  the  thunder. 
With  the  man  who  is  less  normal  and  has  less  fore- 
thought, the  notion  dwells,  resists  the  weak  repulsion 
of  a  not  too  vigorous  moral  sense,  and  finally  prevails; 
for,  as  Victor  Hugo  says,  "  Face  to  face  with  duty, 
to  hesitate  is  to  be  lost."  ' 

"  For  instance,  I  will  recall  a  fact  which  Morel  has  related  of  him- 
self, how  one  day,  as  he  was  crossing  a  bridge  in  Paris,  he  saw  a 
woiking-man  gazing  into  the  water,  and  a  homicidal  idea  flashed  across 
his  mind,  so  that  he  had  to  hurry  away,  for  fear  of  yielding  to  the 
temptation  to  throw  the  man  into  the  water.  Again,  there  is  the  case 
of  Humboldt's  nurse,  who  was  attacked  one  day  by  the  tempta'ion  to 
kill  her  charge,  and  ran  with  him  to  his  mother  in  order  to  avoid  a 


44  CRIMINAL   SOCIOLOGY. 

The  criminal  of  passion  is  one  who  is  strong 
enough  to  resist  ordinary  temptations  of  no  excep- 
tional force,  to  which  the  occasional  criminal  would 
yield,  but  who  does  not  resist  psychological  storms 
which  indeed  are  sometimes  actually  irresistible. 

The  forms  of  occasional  criminality,  which  are  deter- 
mined by  these  ordinary  temptations,  are  also  de- 
termined by  age,  sex,  poverty,  worldly  influences, 
influences  of  moral  environment,  alcoholism,  personal 
surroundings,  and  imitation.  Tarde  has  ably  demon- 
strated the  persistent  influence  of  these  conditions  on 
the  actions  of  men. 

In  this  connection,  Lombroso  has  drawn  a  clear 
distinction  between  two  varieties  of  occasional  crimi- 
nals :  the  "  pseudo-criminals,"  or  normal  human 
beings  who  commit  involuntary  offences,  or  offences 
which  do  not  spring  from  perversity,  and  do  not  hurt 
society,  though  they  are  punishable  by  law,  and 
"  criminaloids,"  who  commit  ordinary  offences,  but 
differ  from  true  criminals  for  the  reasons  already 
given. 

A  final  observation  is  necessary  in  regard  to  this 
anthropological  classification  of  criminals,  and  it 
meets  various  objections  raised  by  our  syllogistic 
critics.  The  difference  existing  amongst  the  five 
categories  is  only  one  of  degree,  and  depends  upon 
their  organic  and  psychological  types,  and  upon  the 
influence  of  physical  and  social  environment. 

In     every    natural     classification    the    differences 

disaster.  Brierre  de  Boismont  also  tells  us  of  a  learned  man  who,  at 
the  sight  of  a  picture  in  a  public  gallery,  was  tempted  to  cut  the  can- 
vas,  and  ran  away  from  his  impulse  to  crime. 


THB    DATA   OF  CRIMINAL   ANTHROPOLOGY,      45 

between  various  groups  and  varieties  are  never  any- 
thing but  relative.  This  deprives  them  of  none  of 
their  theoretical  and  practical  importance,  and  so  it 
is  with  this  anthropological  classification  of  criminals. 

It  follows  that,  as  in  natural  history  we  advance  by 
degrees  and  shades  from  the  inorganic  to  the  organic 
creation,  life  beginning  in  the  mineral  domain  with 
the  laws  of  crystallisation,  so  in  criminal  anthro- 
pology we  pass  by  degrees  and  shades  from  the  mad 
to  the  born  criminal,  through  the  links  of  moral 
madmen  and  epileptics  ;  and  from  the  born  criminal 
to  the  occasional,  through  the  link  of  the  habitual 
criminal,  who  begins  by  being  an  occasional  criminal, 
and  ends  by  acquiring  and  transmitting  to  his  children 
the  characteristics  of  the  born  criminal.  And  finally, 
we  pass  from  the  occasional  criminal  to  the  criminal 
of  passion,  who  is  but  a  species  of  the  other,  and 
who  further,  with  his  neurotic  and  epileptoid  tem- 
perament, not  infrequently  approximates  to  the 
criminal  of  unsound  mind. 

Thus  in  our  everyday  life,  as  in  science,  we  very 
often  find  intermediate  types,  for  complete  and 
unmixed  types  are  always  the  most  uncommon. 
And  whilst  legislators  and  judges,  in  their  com- 
placent psychology,  exact  and  establish  marked 
lines  of  cleavage  between  the  sane  and  the  insane 
criminal,  experts  in  psychiatry  and  anthropology  are 
often  constrained  to  place  a  prisoner  somewhere 
between  the  mad  and  the  born  criminal,  or  between 
the  occasional  criminal  and  the  normal  man. 

But  it  is  evident  that  even  when  a  criminal  cannot 
be  classed  precisely  in  one  or  the  other  category,  and 
5 


46  CRIMINAL   SOCIOLOGY. 

Stands  between  the  two,  this  is  in  itself  a  sufficiently 
definite  classification,  especially  from  a  sociological 
point  of  view.  There  is  consequently  no  weight  in 
the  objection  of  those  who,  basing  their  argumert 
on  an  abstract  and  nebulous  idea  of  the  criminal  in 
general,  and  judging  him  merely  according  to  the 
crime  which  has  been  committed,  without  knowing 
his  personal  characteristics  and  the  circumstances 
of  his  environment,  affirm  that  criminal  anthropology 
cannot  classify  all  who  are  detained  and  accused. 

In  my  experience,  however,  as  a  counsel  and  as  an 
observer,  I  have  never  had  any  difficulty  in  classi- 
fying all  persons  detained  or  condemned  for  crimes 
and  offences,  by  relying  upon  organic,  and  especially 
upon  psychological  symptoms. 

Thus,  as  Garofalo  recently  said,  whilst  the  accepted 
criminal  science  recognises  only  two  terms,  the 
offence  and  the  punishment,  criminal  sociology  on 
the  other  hand  recognises  three :  the  crime,  the 
criminal,  and  the  means  best  calculated  for  social 
self-defence.  And  it  may  be  concluded  that  up  to 
this  time,  science,  legislation,  and,  in  a  minor  degree, 
but  without  any  scientific  method,  the  administration 
of  justice,  have  judged  and  punished  crime  in  the 
person  of  the  criminal,  but  that  hereafter  it  will  be 
necessary  to  judge  the  criminal  as  well  as  the 
crime. 

After  these  general  observations  on  the  anthropo- 
logical classes  of  criminals,  it  might  seem  necessary 
to  establish  their  respective  numerical  proportions. 
But  as  there  is  no  absolute  separation  between  one 


THE  DATA   OF  CRIMINAL  ANTHROPOLOGY.      47 

and  another,  and  as  the  frequency  of  the  several 
criminal  types  varies  according  to  the  crimes  or 
offences,  natural  or  otherwise,  against  persons  or 
property,  no  precise  account  can  be  rendered  of  the 
criminal  world  as  a  whole. 

By  way  of  approximation,  however,  it  may  be  said 
in  the  first  place  that  the  classes  of  mad  criminals 
and  criminals  of  passion  are  the  least  numerous, 
and  represent  something  like  5  or  10  per  cent,  of  the 
total. 

On  the  other  hand,  we  have  seen  that  born  and 
habitual  criminals  are  about  40  or  50  per  cent.  ;  so 
that  the  occasional  criminals  would  also  be  between 
40  and  50  per  cent. 

These  are  figures  which  naturally  vary  according 
to  the  different  groups  of  crime  and  of  criminals 
which  come  under  observation,  and  which  cannot  be 
more  accurately  determined  without  a  series  of 
special  studies  in  criminal  anthropology,  as  I  said 
when  answering  the  objections  which  have  been 
raised  against  the  methods  of  this  novel  science. 

It  remains  for  us,  before  concluding  our  first 
chapter,  to  establish  a  fact  of  great  scientific  and 
practical  value.  This  is  that,  after  the  anthropo- 
logical classification  which  I  have  maintained  for 
some  ten  years  past,  all  who  have  been  devoting 
themselves  to  the  subject  of  crime  as  regarded  from 
a  biological  and  social  standpoint  have  recognised 
the  need  for  a  classification  less  simple  than  that  of 
habitual  and  occasional  criminals,  and  which  will  be 
more  or  less  complex  according  to  the  criterion  which 
may  be  adopted. 


48  CRIMINAL   SOCIOLOGY. 

In  the  first  place,  the  necessity  is  generally  recog- 
nised of  abandoning  the  old .  arbitrary  and  algebraic 
type  in  favour  of  a  classification  which  shall  corre- 
spond more  accurately  with  the  facts  of  the  case. 
This  classification,  originating  in  observations  mad^ 
within  the  prison  walls,  I  have  extended  in  the 
domain  of  criminal  sociology,  wherein  it  is  now 
established  as  a  fundamental  criterion  of  legislative 
measures  which  must  be  taken  as  a  protection 
against  criminals,  as  well  as  a  criterion  of  their 
responsibility. 

Secondly,  the  classifications  of  criminals  hitherto 
given  are  not  essentially  and  integrally  distinct.  It 
has  been  seen,  as  a  matter  of  fact,  that  all  the  classi- 
fications which  have  been  set  forth  amount  to  a 
recognition  of  four  types,  the  born,  the  insane,  the 
occasional  criminals,  and  the  criminals  of  passion  ; 
and  this  again  resolves  itself  into  the  simple  and 
primitive  distinction  between  occasional  and  in- 
stinctive criminals.  The  category  of  criminals  by 
contracted  habit  would  not  be  accepted  by  all 
observers,  but  it  corresponds  too  closely  to  our  daily 
experience  to  stand  in  need  of  further  proof  And  on 
the  other  hand  I  must  frankly  decline  to  accept  the 
authority  of  those  who  put  forward  classifications 
more  or  less  symmetrical  without  having  made  a 
direct  study  of  criminals ;  for  the  experimental 
method  does  not  admit  systems  based  on  mere 
imagination,  or  on  vague  recollections  of  criminal 
trials,  or  on  argumentative  constructions  built  up 
from  the  systems  of  others. 

As  a   matter   of  fact,   apart   from  the  differences 


THE  DATA   OF  CRIMINAL  ANTHROPOLOGY.      49 

of  nomenclature,  it  is  evident  that  the  partial  dis- 
crepancies in  this  anthropological  classification  of 
criminals  are  due  in  some  measure  to  the  different 
points  of  view  taken  by  observers.  For  instance, 
the  classification  of  Lacassagne,  Joly,  Krauss,  Badik, 
and  Marro  rest  upon  a  purely  descriptive  criterion 
of  the  organic  or  psychological  characteristics  of 
criminals.  The  classifications  of  Liszt,  Medem,  and 
Minzloff,  on  the  other  hand,  depend  solely  upon  the 
curative  and  defensive  influence  of  punishment  ;  and 
those  of  Foehring  and  Starke  upon  certain  special 
points  of  view,  such  as  the  assistance  of  released 
prisoners,  on  their  tendency  to  relapse. 

My  own  point  of  view,  on  the  contrary,  has  been 
general  and  reproductive,  for  my  classification  is 
based  upon  the  natural  causes  of  crime,  individual, 
physical,  and  social,  and  to  this  extent  it  corresponds 
more  closely  with  the  theoretical  and  practical  re- 
quirements of  criminal  sociology.  If  the  curative  art 
of  society,  like  that  of  individuals,  expects  from 
positive  knowledge  an  indication  of  remedies,  it  is 
clear  that  a  classification  based  on  the  fundamental 
causes  of  crime  is  best  fitted  to  indicate  a  social 
cure  for  this  manifestation  of  disease,  which  is  the 
essential  object  of  criminal  sociology.  For,  as  in 
biology  one  is  carried  from  purely  descriptive  ana- 
tomy to  genetic  anatomy  and  physiology,  so  in  socio- 
logy we  must  pass  on  from  purely  legal  descriptions 
of  crimes  to  the  genetic  knowledge  of  the  criminals 
who  commit  these  crimes. 

For  this  reason  all  the  chief  classifications  of 
criminals,  as   has   been   seen,  may  be  brought  into 


50  CRIMINAL  SOCIOLOGY. 

line  with  my  own,  by  virtue  of  the  more  complete 
and  fruitful  test  which  has  established  it.  And 
thus  we  have  a  manifest  proof  that  this  classification 
actually  represents  the  common  and  permanent 
basis  of  all  the  chief  anthropological  categories  of 
criminals,  whether  in  regard  to  their  natural  causality 
and  their  specific  character,  or  in  regard  to  the 
different  forms  of  social  self-defence  which  spring 
out  of  them,  and  which  must  be  adapted  to  the 
natural  causes  of  crime,  and  to  the  principal 
criminal   types. 

But  whatever  classification  may  be  accepted,  we 
shall  always  have,  as  the  fundamental  axiom  of 
criminal  anthropology,  this  variety  in  the  types  of 
criminals,  which  must  henceforth  be  indispensable 
to  all  who  are  theoretically  or  practically  concerned 
with  crime. 


CHAPTER   II. 

THE  DATA  OF  CRIMINAL  STATISTICS. 

For  moral  and  social  facts,  unlike  physical  and 
biological  facts,  experiment  is  very  difficult,  and 
frequently  even  impossible  ;  observation  in  this 
domain  brings  the  greatest  aid  to  scientific  research. 
And  statistics  are  amongst  the  most  efficacious 
instruments  of  such  observation. 

It  is  natural,  therefore,  that  criminal  sociology, 
after  studying  the  individual  aspect  of  the  natural 
genesis  of  crime,  should  have  recourse  to  criminal 
statistics  for  the  study  of  the  social  aspect.  Statistical 
information  in  the  words  of  Krohne,  "is  the  first 
condition  of  success  in  opposing  the  armies  of  crime, 
for  it  discharges  the  same  function  as  the  Intelligence 
department  in  war." 

From  statistics,  in  fact,  the  modern  idea  of  the 
close  relation  between  offences  and  the  conditions  of 
social  life,  in  some  of  its  aspects,  and  above  all  in 
certain  particular  forms,  has  most  directly  sprung. 

The  science  of  criminal  statistics  is  to  criminal 
sociology  what  histology  is  to  biology,  for  it  exhibits, 
in  the  conditions  of  the  individual  elements  of 
the  collective   organism,  the   factors   of  crime   as  a 

SI 


52  CRIMINAL   SOCIOLOGY. 

social  phenomenon.  And  that  not  only  for  scientific 
inductions,  but  also  for  practical  and  legislative  pur- 
poses ;  for,  as  Lord  Brougham  said  at  the  London 
Statistical  Congress  in  i860, "  criminal  statistics  are 
for  the  legislator  what  the  chart  and  the  compass  are 
for  the  navigator." 

The  experimental  school, accepting  the  fundamental 
and  incontestible  idea,  apart  from  its  numerical  and 
optimistic  exaggerations,  that  the  statistics  of  crime 
must  be  considered  in  regard  to  the  growth  and 
activity  of  the  population,  has  opened  up  an  entirely 
new  channel  of  fruitful  observations,  in  the  classifi- 
cation and  study  of  the  natural  factors  of  crime. 

In  my  "Studies  of  Crime  in  France"  (1881)  I 
arranged  in  three  natural  orders  the  whole  series  of 
causes  leading  to  crime,  which  had  previously  been 
indicated  in  a  fragmentary  and  incomplete  manner.^ 

From  the  consideration  that  human  actions, 
whether  honest  or  dishonest,  social  or  anti-social,  are 
always  the  outcome  of  a  man's  physio-psychical 
organism,  and  of  the  physical  and  social  atmosphere 
which  surrounds   him,    1    have   drawn    attention   to 

*  Bentham,  in  his  "  Introduction  to  the  Principles  of  Morals  and 
Legislation,"  enumerates  the  following  circumstances  as  necessary  to 
be  considered  in  legislation  : — temperament,  health,  strength,  physical 
imperfections,  culture,  intellectual  faculties,  strength  of  mind,  dispo- 
sitions, ideas  of  honour  and  religion,  feelings  of  sympathy  and  anti- 
pathy, insanity,  economic  conditions,  sex,  age,  social  status,  education, 
profession,  climate,  race,  government,  religious  profession. 

K'  ombroso,  in'the  second  edition  of  his  "Criminal."  which  embraces 
he  divisions  of  his  classical  work,  has  made  but  a  rapid  enumera- 
tion of  the  principal  points  : — race,  civilisation,  poverty,  heredity,  age, 
sex,  civil  status,  profession,  education,  organic  anomalies,  sensations, 
imitation.  Morselli,  treating  of  suicide,  has  given  a  fuller  classification 
of  its  contributory  causes  : — worldly  or  natural  influences,  ethnical  oi 
demographical  influences,  social  influences,  biopsychical  influences. 


THE  DATA   OF  CRIMINAL  STATISTICS.  53 

the  anthropological  or  individual  factors  of  crime,  the 
physical  factors,  and  the  social  factors. 

The  anthropological  factors,  inherent  in  the  indi- 
vidual criminal,  are  the  first  condition  of  crime  ;  and 
they  may  be  divided  into  three  sub-classes,  according 
as  we  regard  the  criminal  organically  physically,  or 
socially. 

The  organic  constitution  of  the  criminal  comprises 
all  anomalies  of  the  skull,  the  brain,  the  vital  organs, 
the  sensibility,  and  the  reflex  activity,  and  all  the 
bodily  characteristics  taken  together,  such  as  the 
physiognomy,  tattooing,  and  so  on. 

The  mental  constitution  of  the  criminal  comprises 
anomalies  of  intelligence  and  feeling,  especially  of 
the  moral  sense,  and  the  specialities  of  criminal 
writing  and  slang. 

The  personal  characteristics  of  the  criminal  comprise 
his  purely  biological  conditions,  such  as  race,  age, 
sex  ;  bio-social  conditions,  such  as  civil  status,  pro- 
fession, domicile,  social  rank,  instruction,  education, 
which  have  hitherto  been  regarded  as  almost  the 
exclusive  concern  of  criminal  statistics. 

The  physical  factors  of  crime  are  climate,  the  nature 
of  the  soil,  the  relative  length  of  day  and  night,  the 
seasons,  the  average  temperature,  meteoric  conditions, 
agricultural  pursuits. 

The  social  factors  comprise  the  density  of  popula- 
tion ;  public  opinion,  manners  and  religion  ;  family 
circumstances  ;  the  system  of  education  ;  industrial 
pursuits  ;  alcoholism  ;  economic  and  political  condi- 
tions ;  public  administration,  justice  and  police  ;  and 
in   general,  legislative,  civil    and   penal   institutions. 


54  CRIMINAL  SOCIOLOGY. 

We  have  here  a  host  of  latent  causes,  commingling 
and  combining  in  all  parts  of  the  social  organism, 
which  generally  escape  the  notice  both  of  theorists 
and  of  practical  men,  of  criminologists  and  of  legis- 
lators. 

This  classification  of  the  natural  factors  of  crime, 
which  has  indeed  been  accepted  by  almost  all  criminal 
anthropologists  and  sociologists,  seems  to  me  more 
precise  and  complete  than  any  other  which  has  been 
proposed. 

In  respect  of  this  classification  of  the  natural  factors 
of  crime,  it  is  necessary  to  make  two  final  observa- 
tions as  to  the  practical  results  which  may  be  obtained 
in  the  struggle  for  just  laws  and  against  the  trans- 
gression of  them. 

In  the  first  place,  owing  to  "  the  discovery  of  the 
unexpected  relation  amongst  the  various  forces  of 
nature,  which  had  previously  been  thought  to  be 
independent,"  we  must  lay  stress  on  this  positive 
deduction,  that  we  cannot  find  an  adequate  reason 
either  for  a  single  crime  or  for  the  aggregate  crimi- 
nality of  a  nation  if  we  do  not  take  into  account  each 
and  all  of  the  different  natural  factors,  which  we  may 
isolate  in  the  exigencies  of  our  studies,  but  which 
always  act  together  in  an  indissoluble  union. 

No  crime,  whoever  commits  it,  and  in  whatever 
circumstances,  can  be  explained  except  as  the  out- 
come of  individual  free-will,  or  as  the  natural  effect  of 
natural  causes.  Since  the  former  of  these  explana- 
tions has  no  scientific  value,  it  is  impossible  to  give 
a  scientific  explanation  of  a  crime  (or  indeed  of  any 


THE  DATA   OF  CRIMINAL    STATISTICS.  55 

Other  action  of  man  or  brute)  unless  it  is  considered 
as  the  product  of  a  particular  organic  and  psychical 
constitution,  acting  in  a  particular  physical  and  social 
environment. 

Therefore  it  is  far  from  being  exact  to  assert  that 
the  positive  criminal  school  reduces  crime  to  a  purely 
and  exclusively  anthropological  phenomenon.  As 
a  matter  of  fact,  this  school  has  always  from  the 
beginning  maintained  that  crime  is  the  effect  of 
anthropological,  physical,  and  social  conditions, 
which  evolve  it  by  their  simultaneous  and  insepar- 
able operation.  And  if  inquiries  into  biological 
conditions  have  been  more  abundant  and  more  con- 
spicuous by  their  novelty,  this  in  no  way  contradicts 
the  fundamental  conclusion  of  criminal  sociology. 

That  being  stated,  we  have  still  to  examine  the 
relative  value  of  these  three  classes  of  conditions  in 
the  natural  evolution  of  crime. 

It  seems  to  me  that  this  question  is  generally 
stated  inaccurately,  and  also  that  it  cannot  be  an- 
swered absolutely,  and  in  a  word. 

It  is  generally  stated  inaccurately ;  because  they 
who  think,  for  instance,  that  crime  is  nothing  else 
than  a  purely  and  exclusively  social  phenomenon  in 
the  evolution  of  which  the  organic  and  psychical 
anomalies  of  the  criminal  have  had  no  part,  ignore 
more  or  less  consciously  the  universal  correlation  of 
natural  forces,  and  forget  that,  in  regard  to  any 
phenomenon  whatsoever,  it  is  impossible  to  set  an 
absolute  limit  to  the  network  of  its  causes,  immediate 
and  remote,  direct  and  indirect. 

To  put  this  question  in  an  arbitrary  sense  would 


56  CRIMINAL   SOCIOLOGY. 

be  like  asking  if  a  mammal  is  the  product  of  its 
lungs,  or  its  heart,  or  its  stomach,  or  of  vegetable 
constituents,  or  of  the  atmosphere ;  whereas  each  of 
these  conditions,  internal  and  external,  is  necessary 
to  the  life  of  the  animal. 

In  fact,  if  crime  were  the  exclusive  product  of 
the  social  environment,  how  could  one  explain 
the  familiar  fact  that  in  the  same  social  environ- 
ment, and  in  identical  circumstances  of  poverty, 
abandonment,  lack  of  education,  sixty  per  cent, 
do  not  commit  crimes,  and,  of  the  other  forty,  five 
prefer  suicide,  five  go  mad,  five  simply  become 
beggars  or  tramps  not  dangerous  to  society,  whilst 
the  remaining  twenty-five  actually  commit  crimes .'' 
And  amongst  the  latter,  whilst  some  go  no  further 
than  theft  without  violence,  why  do  others  commit 
theft  with  violence,  and  even  kill  their  victim  out- 
right, before  he  offers  resistance,  or  threatens  them, 
or  calls  for  help,  and  this  with  no  other  object  than 
gain  ? 

The  secondary  differences  of  social  condition, 
which  may  be  observed  even  amongst  the  members 
of  a  single  family,  rotting  in  one  of  the  slums  of  our 
great  towns,  or  amongst  those  who  are  surrounded  by 
the  temptations  of  money  or  power,  or  the  like,  are 
clearly  not  enough  in  themselves  to  explain  the  vast 
differences  in  the  actions  which  grow  out  of  them, 
varying  from  honesty  under  the  greatest  discourage- 
ment to  suicide  and  murder. 

The  question,  therefore,  must  be  asked  in  a  relative 
sense  altogether,  and  we  must  inquire  which  of 
the   three   kinds   of  natural   causes  of  crime  has  a 


THE  DATA   OF  CRIMINAL   STATISTICS.  57 

greater  or  less  influence  in  determining  each  parti- 
cular crime  at  any  given  moment  in  the  individual 
and  social  life. 

No  clear  answer  of  general  application  can  be  given 
to  this  question,  for  the  relative  influence  of  the 
anthropological,  physical,  and  social  conditions  varies 
with  the  psychological  and  social  characteristics  of 
each  offence  against  the  law. 

For  instance,  if  we  consider  the  three  great  classes 
of  crimes  against  the  person,  against  property,  and 
against  personal  purity,  it  is  evident  that  each  class 
of  determining  causes,  but  especially  the  biological 
and  social  conditions,  have  a  distinctly  different  in- 
fluence in  evolving  homicide,  theft,  or  indecent 
assaults.     And  so  it  is  in  every  category  of  crimes. 

The  undeniable  influence  of  social  conditions,  and 
still  more  of  economic  conditions,  in  leading  up  to 
the  commission  of  theft,  is  far  inferior  in  the  genesis 
of  homicides  and  indecent  assaults.  And  similarly, 
in  each  category  of  crimes,  the  influence  of  the  deter- 
mining conditions  varies  greatly  according  to  the 
special  forms  of  crime. 

Certain  casual  homicides  are  plainly  the  result  of 
social  conditions  (gambling,  drink,  public  opinion, 
&c.)  in  a  much  higher  degree  than  homicides  which 
for  the  most  part  spring  from  brutality,  from  the 
moral  insensibility  ot  individuals,  or  from  their 
psycho-pathological  conditions,  corresponding  to  ab- 
normal organic  conditions. 

In  like  manner,  certain  indecent  assaults,  incests, 
&c.,  are  largely  the  outcome  of  social  environment, 
which,  condemning  a  number  of  persons  to  live  in 


58  CRIMINAL  SOCIOLOGY, 

hovels  without  air  or  h'ght,  with  a  promiscuity  of  sex 
between  parents  and  children  such  as  obtains  amongst 
the  brutes,  effaces  or  deadens  all  normal  sense  of 
modesty.  On  the  other  hand,  there  are  cases  of  rape 
and  the  like  which  are  mostly  due  to  the  biological 
condition  of  the  individual,  either  in  manifest  forms 
of  sexual  disease  or,  less  manifest  though  none  the 
less  actual,  ot  biological  anomaly. 

For  thefts,  again,  whilst  occasional  simple  thefts 
are  largely  the  effect  of  social  and  economical  con- 
ditions, this  influence  becomes  feebler  in  comparison 
with  impulses  due  to  the  personal  constitution, 
organic  and  psychical,  as,  for  instance,  in  the  case 
of  thefts  with  violence,  and  especially  of  murder  for 
the  purpose  of  robbery,  which  scoundrels  of  the 
"  swell-mob  "  so  frequently  commit  in  cold  blood. 

The  same  observation  applies  to  the  conditions  of 
physical  environment.  For  instance,  if  the  regular 
increase  of  crimes  against  property  in  winter  (and,  as 
I  showed  for  the  first  time  from  French  statistics,  in 
years  when  the  cold  is  greatest)  is  only  an  indirect 
result,  through  the  social  and  economic  influences  of 
temperature,  the  increase  of  crimes  of  passion  and 
indecent  assaults  during  the  months  and  years  when 
the  temperature  is  highest  is  only  a  direct  effect  of 
temperature,  even  for  such  as,  by  their  biological 
conditions,  offer  the  feeblest  resistance  to  these 
influences. 

Meanwhile,  a  last  objection  has  been  raised  against 
the  conclusions  which  I  have  maintained  for  many 
years  past. 

It  has  been  said  that,  even  if  we  admit  that  for 


THE  DATA   OF  CRIMINAL   STATISTICS.  $9 

certain  crimes  and  criminals  the  greatest  influence 
must  be  recognised  as  due  to  the  physical  and 
psychical  conditions  of  the  individual,  extending 
from  slightly  manifested  anomalies  of  an  anthropo- 
logical character  to  the  most  accentuated  patholo- 
gical condition,  this  does  not  exclude  the  possibility 
of  a  crime  being  due  to  social  conditions.  In  fact, 
it  is  said  the  anomalies  of  the  individual  are  in  their 
turn  only  an  effect  of  a  debasing  social  environment, 
which  condemns  its  victims  to  organic  and  psychical 
degeneration. 

This  objection  is  sound  enough  if  it  be  taken  in  a 
relative  sense,  but  groundless  if  it  be  insisted  on 
absolutely. 

It  must  be  considered,  in  the  first  place,  that  the 
distinctions  of  cause  and  effect  are  only  relative,  for 
every  effect  has  its  cause,  and  vice  versd  ;  so  that  if 
wretchedness,  material  and  moral,  is  a  cause  of  de- 
generation, degeneration  itself,  like  biological  anomaly, 
is  a  cause  of  wretchedness.  And  in  this  sense  the 
question  would  be  simply  metaphysical,  like  the 
famous  Byzantine  discussions  as  to  whether  there 
was  originally  an  %^%  before  a  hen  or  a  hen  before 
an  &gg. 

And,  in  fact,  when  it  was  said,  in  regard  to  criminal 
geography,  that  the  extent  and  quality  of  crime  in 
such  and  such  a  province,  instead  of  being  the  effect 
of  biological  conditions  (race,  &c.)  and  physical  con- 
ditions (climate,  soil,  &c.),  were  but  the  effect  of  social 
and  economic  conditions  (of  rural  and  industrial  pur- 
suits, and  the  like),  I  was  able  to  make  a  very  simple 
reply.     For,  apart  even  from  statistical  proofs,  if  the 


6o  CRIMINAL  SOCIOLOGY. 

social  conditions  of  such  and  such  a  province,  which 
have  an  unquestionable  influence,  are  really  the  abso- 
lute and  exclusive  cause  of  crime,  we  may  still  ask 
whether  these  social  conditions  of  the  province  are 
not  themselves  the  effect  of  the  ethnical  qualities  of 
energy,  intelligence,  and  so  forth,  in  its  inhabitants, 
and  of  the  more  or  less  favourable  conditions  of  the 
climate  and  the  soil. 

But  it  may  also  be  observed,  more  precisely,  that 
even  apart  from  strongly  marked  and  conspicuous 
pathological  conditions,  which  meanwhile  assert  them- 
selves amongst  the  biological  factors  of  crime,  there  is 
a  very  great  number  of  these  cases  in  which  it  cannot 
actually  be  said  that  the  bio-psychical  anomalies  of 
the  criminal  are  the  effect  of  a  physically  and  morally 
poisonous  environment. 

In  every  family  in  which  there  are  several  children, 
we  find  (in  spite  of  identical  surroundings  and 
conditions  of  a  favourable  kind,  and  suitable  methods 
of  training  and  education),  individuals  who  differ 
intellectually  from  the  cradle  ;  we  also  find  in  the 
degree  or  in  the  kind  of  their  talent,  the  same  indi- 
viduals also  differ  from  their  cradle  in  physical  and 
moral  constitution.  And  though  the  phenomenon 
may  only  be  manifest  in  the  less  numerous  cases  of 
types  which  are  markedly  normal  or  abnormal,  it  is 
none  the  less  true  also  in  the  more  numerous  cases  of 
ordinary  types. 

In  this  connection  I  may  observe  that  physical  and 
social  conditions  have  a  greater  or  a  less  influence  in 
proportion  as  the  physical  and  psychical  constitution 
of  the  individual  is  more  or  less  sound  and  vigorous. 


THE  DATA   OF  CRIMINAL   STATISTICS.  6l 

The  practical  conclusion,  therefore,  of  these  general 
observations  on  the  natural  genesis  of  crime  is  this  : 
Every  crime  is  the  result  of  individual  physical  and 
social  conditions ;  and,  since  these  conditions  have 
a  more  or  less  dominant  influence  for  various  forms 
of  crime,  the  most  certain  and  profitable  mode  of 
defence  which  society  can  employ  against  criminality 
is  of  a  twofold  character,  and  both  modes  ought  to  be 
employed  and  brought  into  action  simultaneously — 
in  the  first  place,  the  amelioration  of  the  social  con- 
ditions, as  a  natural  preventive  of  crime,  in  the  nature 
of  a  substitute  for  punishment  ;  and,  secondly, 
measures  of  perpetual  or  temporary  elimination  of 
criminals,  according  as  the  influence  of  biological  con- 
ditions in  the  evolution  of  crime  is  all  but  absolute, 
or  more  or  less  great,  and  more  or  less  curable. 

As  a  matter  of  fact,  when  we  follow  the  periodic 
variations  of  crime,  with  its  measured  growth  and 
decrease,  we  cannot  fail  to  conclude  that  these  con- 
stant and  constantly  occurring  variations  depend 
upon  a  corresponding  variation  of  anthropological 
and  physical  factors.  For,  whilst  criminal  statistics 
are  far  from  showing  the  regularity  which  Quetelct 
claimed  with  much  exaggeration,  the  proportional 
figures  in  regard  to  the  bearings  of  age,  sex,  calling, 
&c.,  upon  criminality  exhibit  very  insignificant  varia- 
tions from  year  to  year.  And  as  for  the  physical 
factors,  if  marked  variations  are  explicable  at  some 
given  period,  it  is  nevertheless  evident  that  neither 
climate,  nor  the  nature  of  the  soil,  nor  atmospheric 
conditions,  nor  the  seasons,  nor  the  temperature  of 
different  years  could  have  undergone  in  the  last  half- 
6 


62  CRIMINAL   SOCIOLOGY. 

century  such  constant  and  repeated  variations  as  to 
correspond  to  those  waves  .of  criminaHty  which  we 
shall  presently  exhibit  in  almost  every  nation  of 
Europe. 

Thus  it  is  to  the  social  factors  that  we  must  chiefly 
attribute  the  periodic  variations  of  criminality.  For 
even  the  variations  which  can  be  detected  in  certain 
anthropological  factors,  like  the  influences  of  age 
and  sex  upon  crime,  and  the  more  or  less  marked 
outbreak  of  anti-social  and  pathological  tendencies, 
depend  in  their  turn  upon  social  factors,  such  as  the 
protection  accorded  to  abandoned  infants,  the  par- 
ticipation of  women  in  non-domestic,  commercial 
and  industrial  life,  preventive  and  repressive  mea- 
sures, and  the  like.  And  again,  since  the  social 
factors  have  special  import  in  occasional  crime,  and 
crime  by  acquired  habit,  and  since  these  are  the  most 
numerous  sections  of  crime  as  a  whole,  it  is  clear 
that  the  periodic  movement  of  crime  must  be  attri- 
buted in  the  main  to  the  social  factors.  So  true  is 
this,  that,  as  we  shall  presently  see,  the  gravest 
crimes,  especially  against  persons,  precisely  because 
they  mostly  indicate  congenital  criminality,  follow 
a  more  steady  and  regular  movement  than  these 
slighter  but  far  more  frequent  offences  against 
property,  public  order,  and  persons,  of  a  more 
occasional  character,  and  that,  as  microbes  of  the 
world  of  crime,  they  are  the  more  direct  outcome  of 
social  environment. 

It  is  therefore  another  point  in  favour  of  the  experi- 
mental school  that  it  has  insisted  on  this  sociological 
aspect   of  the   problem  of  criminality,  by  showing 


THE  DATA   OF  CRIMINAL  STATISTICS.  63 

legislators,  outside  the  limits  of  their  punitive 
remedies,  as  easy  as  they  are  illusory,  how  they 
might,  as  far  as  circumstances  will  permit,  apply  a 
genuine  social  remedy  to  crime. 

After  these  preliminary  observations,  it  is  time 
that  we  should  take  a  closer  view  of  the  general 
statistics  of  the  movement  of  crime  in  Europe,  so 
far  as  they  may  be  followed  in  official  figures. 

Whilst  we  have  no  intention  of  offering  a  body  of 
comparative  statistics,  but  only  of  giving  a  simple 
indication  of  the  periodic  movement  of  crime,  these 
data,  which  do  not  render  it  easy  to  compare  one 
country  with  another,  though  they  are  intimately 
related  so  far  as  each  particular  country  is  concerned, 
suffice  to  exhibit  a  few  facts  of  some  considerable 
importance. 

The  most  conspicuous  general  phenomenon  in  the 
countries  here  included  is  ^/le  steadiness  of  the  gravest 
forms  of  crime  side  by  side  with  the  continuoiis  increase 
of  slighter  offences,  especially  in  the  countries  which 
show  a  long  series  of  figures,  such  as  France, 
England,  and  Belgium.  This  proceeds  mainly  from 
the  progressive  accumulation  of  offences  against 
special  enactments,  which  are  constantly  being  added 
to  the  original  basis  of  the  penal  code  ;  but  it  is 
also  a  symptom  of  an  actual  transformation  in  the 
criminal  activity  of  the  century,  from  whence, 
through  the  gradual  substitution  of  crimes  against 
property  in  the  great  towns  for  crimes  against  the 
person  in  earlier  centuries,  we  have  a  wider  extension 
together  with  a  lower  degree  of  intensity. 


64  CRIMINAL   SOCIOLOGY. 

Another  characteristic  common  to  the  countries 
under  observation  is  that,  whilst  the  graver  crimes 
against  property  show  a  somewhat  marked  diminution, 
crimes  against  persons,  on  the  other  hand,  show 
more  steadiness,  either  of  regularity,  as  in  France 
and  Belgium,  or  of  increase,  as  in  England,  and 
still  more  in  Germany.  But  this  phenomenon  in 
the  case  of  crimes  against  the  person  is  in  actual 
correspondence  with  criminal  activity  arising  from 
an  increase  of  population.  On  the  other  hand — 
apart  from  the  transformation  of  crimes  of  violence 
into  crimes  of  craft  and  fraud,  due  to  the  increase 
of  movable  property — the  decrease  of  offences  against 
property  is  no  more  than  the  manifest  effect  of 
an  artificial  change  of  judicial  procedure,  summary 
proceedings  taking  the  place  of  trial  by  jury. 

An  alternation,  which  is  not  invalidated  by  excep- 
tions here  and  there,  has  been  observed  in  the 
criminality  of  different  countries,  in  the  periodic 
movement  of  crimes  and  offences  against  property 
and  those  against  the  person,  of  such  a  kind  that 
years  of  increase  in  the  former  usually  answer  to 
a  diminution  in  the  latter,  and  vice  versA.  The 
principal  factors  in  the  annual  increase  of  theft,  such 
as  scarcity  and  extremes  of  weather,  cause  a  corre- 
sponding diminution  of  violent  assaults  and  bodily 
harm,  of  homicides  and  indecent  assaults,  and  vice 
versd.  On  the  other  hand,  offences  against  property, 
which  are  very  numerous,  contribute  most  of  all  to 
the  total  of  annual  crime ;  so  that  the  maximum  of 
1880  in  Italy,  as  well  as  in  France,  Belgium  and 
Austria,  is  especially  due  to  the  great  severity  of  the 


THE  DATA    OF   CRIMINAL   STATISTICS.  65 

winter  of  1879-80,  which  in  Italy  coincided  with  an 
agricultural  crisis,  attested  by  the  very  high  price  of 
corn.  Whereas  from  1881  to  1885  there  were  very 
mild  winters,  with  more  abundant  harvests,  and 
from  1886  a  greater  extreme  of  cold  and  a  more 
acute  economic  crisis. 

The  general  tendency  of  these  periodic  oscil- 
lations of  crime  in  Italy,  as  in  other  European 
countries,  is  nevertheless  far  more  towards  increase 
than  towards  decrease.  This  is  also  shown  by  the 
proportional  triennial  averages  of  crimes  and  offences 
placed  on  record,  and  of  persons  condemned  to 
imprisonment. 

In  the  movement  of  crime  in  each  country  it  is 
necessary  to  distinguish  special  oscillations,  more  or 
less  prolonged,  of  increase  or  decrease,  from  its 
general  and  permanent  tendency.  The  latter  is 
determined  by  the  fundamental  conditions  of  each 
nation,  physical  and  social,  apart  from  the  purely 
artificial  section  of  transgressions  brought  into  exis- 
tence by  new  laws.  The  special  oscillations,  on  the 
other  hand,  are  determined  by  the  annual  variations 
in  this  or  that  factor  of  the  more  numerous  offences  ; 
that  is  to  say,  by  abundance  or  scantiness  of  the 
harvests,  by  the  annual  variations  of  temperature, 
by  industrial  and  political  crises,  and  the  like. 

The  oblivion  of  this  marked  distinction,  coupled 
with  the  prejudices  of  the  scientific  schools,  and  even 
of  political  parties,  leads  to  some  curious  dis- 
agreements, and  to  lively  discussions  on  the  results 
of  criminal  statistics.  For  on  one  side  the  champions 
of  the  classical  school  plainly  see  that  the  persistent 


66  CRIMINAL  SOCIOLOGY, 

increase  of  crimes  and  offences  amounts  to  a  proof  of 
that  breakdown  of  penal  systems,  practical  and  theo- 
retical, which  have  hitherto  been  applied  —  as  was 
admitted  by  Holtzendorff.  And  on  the  other  hand, 
the  increase  of  crimes  is  denied  or  affirmed  for  the 
purpose  of  supporting  or  attacking  some  particular 
ministry.  For,  in  parliaments  more  than  elsewhere, 
there  is  always  a  deep-seated  and  vivacious  prejudice, 
a  kind  of  social  artificiality,  which  causes  men  to  think 
that  the  condition  of  States,  moral  and  economic,  is 
fundamentally  determined  far  more  by  the  action  of 
this  or  that  government  than  by  natural  factors, 
which  are  mainly  superior  to  and  outside  of  govern- 
ments and  politicians. 

And  this  is  why  in  Italy  there  has  been  much  dis- 
cussion of  late,  in  scientific  publications,  at  the  sittings 
of  the  Central  Commission  of  Judicial  Statistics,  and 
even  in  Parliament,  as  to  whether  crime  was  increasing 
or  decreasing. 

Beltrani-Scalia  and  Lombroso  almost  simultaneously 
called  attention  to  the  growth  of  Italian  crime,  and  they 
were  succeeded  by  various  adherents  of  the  positive 
school,  such  as  Ferri,  Garofalo,  Pavia,  Pugliese,  Guidi, 
Bournet,  Barzilai,  and  Rossi,  who  produced  evidence 
that  the  general  tendency  of  crime  in  Italy  was  to 
increase,  and  that  the  diminutions  observed  after  1880 
were  mere  transitory  oscillations  ;  and  after  1886  they 
were  justified  by  facts. 

On  the  other  hand,  official  returns  of  criminal 
statistics,  and  a  majority  of  the  members  of  the 
Central  Commission,  when  pursuing  an  inquiry 
suggested  by  myself  into  Italian  crime  since  1873 


THE  DATA    OF  CRIMINAL   STATISTICS.  67 

— for  previously  to  this  date  there  are  no  criminal 
statistics  in  Italy  except  for  1853  and  1869-70 — 
came  to  the  conclusion  that  there  was  a  tendency 
towards  a  diminution  of  crime.  But  their  decision 
was  formed  from  an  entirely  partial  standpoint,  which 
they  had  taken  up  in  the  exigency  ot  polemical  dis- 
cussion. They  compared,  in  fact,  the  years  just  con- 
cluded, 1 88 1-5,  with  1880,  and  thus  it  naturally 
followed  that  after  a  maximum  they  had  a  relative 
decrease.  And  it  was  only  this  ingenious  comparison 
which  gave  an  appearance  of  actual  proof  to  their 
optimistic  assertions  ;  for  when  a  fever  is  at  forty 
degrees,  the  fall  of  even  half  a  degree  is  very  im- 
portant. They  paid  special  attention  to  the  so-called 
high  criminality,  which  is  tried  by  the  Assize  courts, 
and  is  actually  decreasing,  though  by  the  purely 
artificial  effect  of  more  and  more  effective  measures 
of  correction.  But  I  have  always  maintained,  and 
I  have  the  support  of  M.  Oettingen,  that  we  cannot 
separate  crimes  and  offences  tried  by  the  Assizes 
from  those  tried  by  the  Tribunals,  for  there  is  only 
a  difference  of  degree  between  them,  as  is  clear  in 
regard  to  theft,  assaults  and  wounding,  forgery  and 
the  like. 

It  is  a  curious  fact  that  similar  illusions  have 
existed  in  all  countries  through  the  same  causes  and 
prejudices  which  have  been  mentioned  above.  In 
France,  for  instance,  we  often  find  that  the  keepers 
of  the  seals,  reporting  on  volumes  of  the  excellent 
and  valuable  series  of  criminal  statistics  since  the 
year  1826,  occasionally  remark  on  these  oscillatory 
diminutions,  and  make  a  point  of  treating  them  as 


68  CRIMINAL   SOCIOLOGY. 

signs   of    a   constant   and   general   tendency,   which 
succeeding  years  have  always  contradicted. 

In  France  also,  the  same  controversy  has  been  kept 
up  since  1840,  with  the  same  polemical  artifices  as 
were  employed  more  recently  in  Italy,  on  the  question 
whether  crime  has  increased  or  decreased.  Dufau, 
Beranger,  Berrzat  de  St.  Prix,  and  Legoyt  affirmed 
that  it  had  diminished  since  1826,  against  the  true 
opinion  of  de  Metz,  Dupin,  Chassan,  Mesuard,  and 
Fayet,  the  last  of  whom  quotes  the  others  in  one  of 
his  essays  on  criminal  statistics,  now  undeservedly 
forgotten,  though  they  abound  in  striking  and  pro- 
found observation. 

But,  as  for  France  in  those  days,  so  for  Italy  to-day, 
the  statistics  of  succeeding  years  quickly  proved  that 
what  official  optimism  and  national  self-complacency 
spoke  of  as  pessimism  on  our  part  was  but  a  con- 
scientious inference  from  lamentable  facts,  established 
in  every  country  by  the  influence  of  civilisation  on 
crime,  which   I   have  described  in  preceding  pages. 

After  these  general  statements  we  ought  logically 

to  watch   the    periodic    movement   of  each    leading 

category  of  crimes  and  offences  in  each  division  of 

the  country ;    for   not  all   crimes,   nor   all   districts, 

pursue  the  same  course  from  year  to  year.     But  as 

this  inquiry  is  impossible  in  the  present  work,  we 

may  pass  on  to  the  general  figures  for  other  European 

countries. 

France. 

1826-8.  1885-7. 

Police  Contraventions       100  391  \ 

Oflences       100  397 1  •    £. 

Crimes  against  the  person 100  ^g^n  01  years. 


property 100 


4U 


THE  DATA   OF  CRIMINAL   STATISTICS.  69 

Belgium. 


1850-8. 
Tried  by  the  Correctional  Tribunals, 

for  crimes  against  the  person           ...     loo 
,,  property 100 

1840-2. 

Tried   by  the  Tribunals  for  "  Offences  "     100 

Tried  at  Assizes,  crimes  against  the  person     100 

,t  n  property        loo 


England. 


1857-9. 
100 


Tried  summarily,  for  offences      

1835-7- 
Crimmal  cases,  against  the  person          ...     100 
,,           against  property,  and  for 
circulation  of  false  money     100 

Ireland. 

1864-6. 

Tried  summarily 100 

Crimes  against  the  person...         100 

„  property,  and  false  money     100 


Prussia. 


Contraventions  and  "  vols  de  bois  " 
Crimes  and  offences  


1854-6. 
icx> 
100 


Germany. 

1882-4. 
Crimes  and  offences  against  public  order     100 
„  „  the  person        100 

„  „  property    ...     icx> 


Austria. 


Prisoners  condemned  for  crimes  ... 
,,  ,,  offences ... 


Spain. 


Tried  for  crimes  and  offences 
,j       contraventions    ... 


1867-9. 
100 
ICX) 


i88v4. 
ICO 
ICX) 


1883-s. 

Jgj  in  36  years. 

1883-5. 

260 

65 

21) 


in  46  years 


1884-6. 

176    in  30  years. 

1884-6. 
143) 


55J 


in  55  years. 


1886-8. 

95). 

S7^m  25  years. 

52  J 


1876-8. 
I34}"»  25  years. 


1885-7. 
iioj 

116  Un  6  years. 
95) 


1884-6. 

^^^1  in  20  years. 


1886-7. 
JijjinS  years. 


The  most  constant  general  fact  shown  by  these 
data  is  in  all  cases  the  very  remarkable  increase  of 
slighter  delinquencies,  side  by  side  with  constancy  or 


70  CRIMINAL  SOCIOLOGY. 

slight  diminution  in  crimes  against  the  person,  and  a 
large  diminution  in  crime  against  property.  This  is 
seen  in  France,  England,  Belgium,  whilst  there  is  an 
increase  both  of  crimes  and  offences  in  Austria. 

Behind  the  general  fact,  however,  we  must  dis- 
tinguish between  the  actual   and  the  apparent. 

On  the  one  hand,  the  decrease  of  more  serious 
crime  against  property  is  simply  due  to  prisoners 
electing  to  be  sentenced  by  the  inferior  court,  which 
is  at  the  discretion  of  the  Tribunals  in  France,  but 
legally  established  in  Belgium,  by  the  laws  of  1838 
and  1848,  and  in  England  by  the  Acts  of  1856  and 
1878 — an  election  of  the  slighter  but  more  certain 
punishment  of  the  magistrates  in  preference  to  going 
before  a  jury.  Indeed,  crimes  against  the  person,  in 
which  there  is  less  power  of  election,  do  not  exhibit 
so  marked  a  decrease ;  and  accordingly  we  see  that 
in  Belgium  the  increase  of  "  correctionalised  "  crimes 
is  due  far  more  to  crimes  against  property  (62  per 
cent,  in  36  years)  than  to  those  against  the  person 
(9  per  cent). 

On  the  other  hand,  the  growth  of  slighter  delin- 
quency is  partly  the  effect  of  special  enactments, 
which  are  constantly  creating  new  infractions,  offences 
or  contraventions.  For  France  may  be  mentioned 
the  law  of  1832  on  eluding  supervision;  that  of  1844 
on  the  game  laws,  that  of  1857  on  the  false  descrip- 
tion of  goods  for  sale,  of  1845  on  railway  offences, 
of  1849  on  the  expulsion  of  refugees,  of  1873  on 
drunkenness,  and  of  1874  on  requisition  of  horses. 
I  dealt  with  the  statistical  results  of  these  laws,  and 
with  the  influence  of  the  increasing  number  of  police 


THE  DATA    OF  CRIMINAL    STATISTICS.  7 1 

agents,  in  my  "  Studies  on  Criminality  in  France " 
(Rome,  1881)  ;  and  I  will  here  add  only  a  single 
observation.  If  it  is  true,  as  M.  Joly  says,  that  other 
laws,  passed  since  1826,  have  extinguished  a  few 
offences,  or  at  least  have  diminished  their  frequency 
under  less  severe  regulations,  yet  it  is  also  true  that 
the  new  infractions  created  in  the  past  half-century 
show  far  higher  numbers  than  those  of  the  infractions 
which  have  been  extinguished  or  rendered  less  easy. 
So  that  amongst  the  297  per  cent,  of  increase  on 
the  offences  tried  in  France  between  1826  and  1887, 
the  element  due  to  legal  creation  of  new  infractions 
must  not  be  ignored. 

It  cannot,  however,  be  denied  that  for  certain  more 
frequent  offences  we  have  a  real  and  very  noteworthy 
increase,  apart  from  any  legislative  or  statistical  cause 
of  disturbance. 

The  same  observation  may  be  made  in  regard  to 
England.  There  also  the  increase  of  y6  per  cent, 
during  thirty  years  of  offences  tried  summarily  is 
due  in  part  to  new  infractions,  created  by  special 
legislation,  and  especially  by  the  Education  Act  of 
1873,  under  which  there  were  more  than  forty 
thousand  infractions  in  1878,  and  more  than  sixty- 
five  thousand  in  1886. 

In  regard  to  this  delinquency  in  England  (wherein 
are  included,  over  and  above  real  offences,  certain 
infractions  corresponding  to  the  police  contraventions 
of  the  Italian,  French,  Belgian  and  Austrian  codes)  it 
is  to  be  observed  that  the  increase  of  y6  per  cent, 
in  thirty  years  is  due  rather  to  contraventions  than 
to  offences.     And  this  would  establish  a  remarkable 


72  CRIMINAL   SOCIOLOGY, 

difference  between  the  variations  of  delinquency  in 
England  and  in  France. 

If  we  analyse  the  record  of  infractions  tried  sum- 
marily in  England,  we  find  that  contraventions  of  the 
law  in  respect  of  drunkenness  account  for  most  of 
this  increase  (from  82,196  in  1861  to  183,221  in  1885 
and  165,139  in  1886).  On  the  other  hand,  offences 
against  the  person  (assaults)  and  against  property 
(stealing,  larceny,  malicious  offences)  have  not  shown 
so  large  an  increase. 

In  fact,  if  we  compare  the  variations  in  assaults 
and  thefts  in  France  and  England,  we  have  the 
following  figures: — 

England. 

1861-3.      1879-81. 

Prisoners  tried  summarily  for  assaults 100  102 

Ditto  for  stealing,  larceny,  and  malicious 

offences        loo  lio 

France. 

Cases  tried  by  the  Tribunals  : 

For  assault  and  wounding     ICX>  134 

For  simple  theft      loo  I16 

So  that  in  England  not  only  the  total  delinquency, 
but  more  especially  the  commoner  offences  against 
the  person  and  against  property  show  a  slighter 
increase  than  that  which  has  been  established  for 
the  same  period  in  France.  Whilst  we  do  not 
overlook  the  greater  increase  of  crimes  against  the 
person  in  England  (coinciding,  of  course,  with  the 
doubling  of  the  population  in  fifty-five  years),  this 
fact  seems  to  me  to  prove  the  salutary  influence 
of  English  organisations  against  certain  social  factors 
which  lead  up  to  delinquency  (such  as  the  care  of 


THE  DATA   OF  CRIMINAL   STATISTICS.  73 

foundlings,  the  guardianship  of  the  poor,  and  so 
forth),  notwithstanding  the  great  development  of 
economic  activity,  which  is  assuredly  in  no  way 
inferior  to  that  of  France.  The  figures  strengthen 
my  conclusions  as  to  the  social  factors  of  crime, 
and  refute  the  optimistic  theory  of  Poletti, 

But  the  actual  participation  of  each  country  in  the 
general  increase  of  crime  in  Europe  is  determined  by 
other  causes,  outside  of  the  artificial  influences  of 
different  codes  of  law.  And  the  most  general  and 
constant  of  these  causes,  in  all  the  various  physical 
and  social  environments,  is  the  annual  increase  of 
population,  which,  by  adding  to  the  density  of  the 
inhabitants  of  each  country,  multiplies  their  material 
and  legal  relations  to  one  another,  and,  consequently, 
the  objective  and  subjective  constituents  of  crime. 

Taking  the  official  Italian  figures,  which  are  also 
relied  on  by  M.  Levasseur,  we  find,  for  the  periods 
corresponding  to  the  variations  of  criminality,  the 
following  rates  of  increase  in  the  population  of  the 
different  countries.  Ireland  shows  a  decrease,  owing 
to  emigration. 

Increase. 
Italy        .►    22,104,7891111863 — 30,947,3061111889  40  per  cent. 

...  27,165,553  in  1873— 30,565,188  in  1888      •       12       „ 
France     ...  31,858,937  in  1826 — 38,218,903  in  1887  20  per  cent. 

Belgium  ...     4,072,619  in  1840—  5,583,278  in  1885  44       ,, 

Prussia     ..."  21,046,984  in  1852 — 26,614,428  in  1878  26       „ 

Germany       45,717,000  in  1882 — 47,540,000  in  1887  4       „ 

England...  13,896,797  in  1831 — 27,870,586  in  1886  loi       „ 

,,      .     ...  20,066,224  in  1861 — 27,870,586  in  1886  39       „ 

Austria    ...  20,217,531  in  1869 — 23,070,688  in  1886  14      „ 

Ireland    ...     5,798,967  in  186 1 — 4,777,545  in  1888  dec.   17       „ 

It  must,  however,  be  observed,  with  regard  to  this 
increase  of  the  population,  firstly  that  it  tells  as  a  factor 


74  CRIMINAL   SOCIOLOGY. 

of  criminality  only  in  so  far  as  it  is  not  neutralised, 
wholly  or  in  part,  by  other  influences,  mainly  social, 
which  prevent  crime  or  render  it  less  grave.  Secondly, 
it  is  not  right  merely  to  compare  the  proportional 
rates  of  increase  in  the  population  with  those  of  crime, 
as  was  done  for  instance  by  M.  Bodio,  who  said  that 
in  Italy,  from  1873  to  1883,  "since  the  population 
had  increased  by  7.5  per  cent.,  crime  might  have 
increased  during  the  same  time  by  7.5  per  cent.,  with- 
out its  being  fair  to  say  that  it  had  actually  increased." 
In  point  of  fact,  as  M.  Rossi  remarked,  since  in  Italy, 
and  almost  all  the  European  States,  the  growth  of 
the  population  is  due  to  the  excess  of  births  over 
deaths  (for  emigration  is  more  numerous  than  im- 
migration), it  is  evident  that,  when  we  confine  our 
attention  to  short  periods,  the  addition  to  the  popu 
lation,  consisting  of  children  under  ten  or  twelve 
years,  does  not  increase  crime  in  an  appreciable 
degree.  The  deaths,  on  the  other  hand,  must  be 
subtracted  from  all  stages  of  human  life,  but  espe- 
cially from  the  number  of  those  who  can  and  do 
commit  crimes  and  offences. 

Now,  as  we  cannot  in  this  place  go  into  detail, 
I  must  confine  myself  to  the  statement  of  a  few 
characteristic  facts,  as  illustrated  by  European  crime. 
Thus  we  perceive  the  influence  of  the  great  famine 
of  1846-7  on  crimes  against  property  in  France  and 
Belgium  ;  the  rapid  oscillations  of  crime  in  Ireland, 
indicating  the  unstable  political  and  social  conditions 
of  the  country ;  and  the  parallel  movements  of  crime 
in  France  and  Prussia.  We  see,  indeed,  a  constant 
diminution  of  crime  for  the  period  between  i860  and 


THE  DATA   OF  CRIMINAL   STATISTICS.  75 

1870,  followed  (after  the  statistical  disturbance  of  the 
terrible  year  1 870-1)  by  a  period  of  serious  and  con- 
tinued increase  of  crime,  resulting  from  social  and 
economic  conditions,  as  shown  especially  by  the 
increase  of  vagrancy  and  .theft  since  1875. 

All  these  general  facts  go  to  prove  the  close 
and  intimate  connection  between  crime  and  the 
aggregate  of  its  various  constituents.  So  that,  with- 
out pursuing  more  detailed  inquiries  into  certain 
social  factors  of  crime,  which  are  capable  of  statis- 
tical enumeration,  such  as  the  increase  in  the  number 
of  the  police,  the  abundance  or  scarcity  ot  corn  and 
wine,  the  spread  of  drunkenness,  family  circumstances, 
increase  of  personal  possessions,  the  facility  or  other- 
wise of  the  settlement  of  disputes,  commercial  and 
industrial  crises,  the  rate  of  wages,  the  variation  from 
year  to  year  of  the  general  conditions  of  existence, 
and  so  forth,  coincident  with  the  development  of 
education,  encouragements  to  thrift  and  the  organi- 
sation of  charity,  we  must  now  proceed  to  draw  from 
these  statistical  data  the  most  important  conclusions 
of  criminal  sociology. 


76  CRIMINAL  SOCIOLOGY. 

I. 

Criminal  statistics  show  that  crime  increases  in  the 
aggregate,  with  more  or  less  notable  oscillations  from 
year  to  year,  rising  or  falling  in  successive  waves. 
Thus  it  is  evident  that  the  level  of  criminality  in  any 
one  year  is  determined  by  the  different  conditions  of 
the  physical  and  social  environment,  combined  with 
the  hereditary  tendencies  and  occasional  impulses  of 
the  individual,  in  obedience  to  a  law  which  I  have 
called,  in  analogy  with  chemical  phenomena,  i/ie  law 
of  criminal  saturation. 

Just  as  in  a  given  volume  of  water,  at  a  given 
temperature,  we  find  a  solution  of  a  fixed  quantity 
of  any  chemical  substance,  not  an  atom  more  or  less, 
so  in  a  given  social  environment,  in  certain  defined 
physical  conditions  of  the  individual,  we  find  the 
commission  of  a  fixed  number  of  crimes. 

Our  ignorance  of  many  physical  and  psychical  laws 
and  of  innumerable  conditions  of  fact,  will  prevent  us 
from  obtaining  a  precise  view  of  this  level  of  crimin- 
ality. But  none  the  less  is  it  the  necessary  and  inevit- 
able result  of  a  given  physical  and  social  environment. 
Statistics  show  us,  indeed,  that  the  variations  of  this 
environment  are  always  attended  by  consequential 
and  proportional  variations  of  crime.  In  France,  for 
instance  (and  the  observation  will  be  found  to  apply 
to  every  country  which  possesses  an  extended  series 
of  criminal  statistics),  the  number  of  crimes  against 
the  person  varies  but  little  in  sixty-two  years.  The 
same  thing  holds  good  for  England  and  Belgium, 
because  their  special  environment  is  also  less  variable, 


THE  DATA    OF  CRIMINAL   STATISTICS.  77 

by  reason  that  hereditary  dispositions  and  human 
passions  cannot  vary  profoundly  or  frequently,  except 
under  the  influence  of  exceptional  disturbances  of 
the  weather,  or  of  social  conditions.  In  fact,  the 
more  serious  variations  in  respect  of  crimes  against 
the  person  in  France  have  taken  place  either  during 
political  revolutions,  or  in  years  of  excessive  heat,  or 
of  exceptional  abundance  of  meat,  grain,  and  wine. 
This  is  illustrated  by  the  exceptional  increase  of 
crime  from  1849  to  1852.  Minor  offences  against 
the  person,  on  the  contrary,  which  are  more  occa- 
sional, assaults  and  wounding,  for  example,  vary 
in  the  main,  as  to  their  annual  oscillations,  with 
the  abundance  of  the  wine  harvest,  whilst  in  their 
oscillations  from  month  to  month  they  display  a 
characteristic  increase  during  the  vintage  periods, 
from  June  to  December,  notwithstanding  the  constant 
diminution  of  other  offences  and  crimes  against  the 
person. 

On  the  other  hand,  crimes  against  property,  and 
still  more  offences  against  property,  show  wide  oscil- 
lations on  account  of  the  variability  of  the  special 
environment,  which  is  almost  always  in  a  condition  of 
unstable  equilibrium,  as  in  periods  of  scarcity,  and  of 
commercial,  financial  and  industrial  crises,  and  so 
forth,  whilst  they  are  subject  also  to  the  influence 
of  the  physical  environment.  Crimes  and  offences 
against  property  display  extraordinary  increases  in 
the  severest  winter  seasons,  and  diminutions  in  milder 
winters. 

And  this  correspondence  between  the  more  general, 
powerful,  and  variable  physical  and  social  factors  of 
7 


78  CRIMINAL   SOCIOLOGY. 

crime,  as  well  as  its  more  characteristic  manifestations 
such  as  thefts,  wounding,  and  indecent  assaults,  is  so 
constant  and  so  direct  that,  when  I  was  studying  the 
annual  movement  of  criminality  in  France,  and  per- 
ceived some  extraordinary  oscillation  in  the  crimes 
and  offences,  I  foresaw  that  in  the  annals  of  the  year 
I  should  find  mention  of  an  agricultural  or  political 
crisis,  or  an  exceptional  winter  or  summer  in  the 
records  of  the  weather.  So  that  with  a  single  column 
of  a  table  of  criminal  statistics  I  was  able  to  recon- 
struct the  historical  condition  of  a  country  in  its  more 
salient  features.  In  this  way  psychological  experiment 
again  confirmed  the  truth  of  the  law  of  criminal 
saturation. 

Not  only  so,  but  it  may  be  added  that  as,  in 
chemistry,  over  and  above  the  normal  saturation  we 
find  that  an  increased  temperature  of  the  liquid  enve- 
lopes an  exceptional  super-saturation,  so  in  criminal 
sociology,  in  addition  to  the  ordinary  saturation  we 
are  sometimes  aware  of  an  excess  of  criminal  satura- 
tion, due  to  the  exceptional  conditions  of  the  social 
environment. 

Indeed  it  is  to  be  observed  not  only  that  the  main 
and  typical  criminality  has  a  sort  of  reflex  criminality 
depending  upon  it,  but  also  that  an  increase  of  more 
serious  or  more  frequent  crimes  induces  a  crop  of  re- 
sistance to  and  assaults  upon  the  guardians  of  public 
order,  together  with  false  witness,  insults,  avoidance  of 
supervision,  absconding,  and  the  like.  Certain  crimes 
and  offences  also  have  their  complementary  offences, 
which  from  being  consequences  become  in  their  turn 
the  causes  of  new  offences.     Thus  concealment  and 


THE   DATA    OF  CRIMINAL    STATISTICS.  79 

purchase  of  stolen  goods  increase  simultaneously  with 
theft  ;  homicide  and  wounding  lead  to  the  illegal 
carrying  of  arms  ;  adultery  and  abusive  language  to 
duels,  and  so  forth. 

Beyond  this  there  are  sundry  kinds  of  excessive 
criminal  saturations  which  are  exceptional,  and 
therefore  transitory.  Ireland  and  Russia  present  us 
with  conspicuous  examples  in  their  political  and 
social  crimes  ;  and  similarly  America,  during  election 
contests.  So  in  France  before  and  after  December  2 
185 1,  the  harbouring  of  criminals,  which  in  no  other 
quadrennial  period  from  1826  to  1887  exceeds  a  record 
of  fifty,  rises  in  1850-53  as  high  as  239.  So  during 
the  famine  of  1847,  theft  of  grain  rises  in  France  to 
forty-two  in  a  single  year,  whilst  for  half  a  century  it 
barely  reaches  a  total  of  seventy-five.  It  is  notorious, 
again,  that  in  years  of  dear  provisions,  or  severe 
winters,  a  large  number  of  thefts  and  petty  offences 
are  committed  for  the  sole  object  of  securing  mainten- 
ance within  the  prison  walls.  And  in  this  connection 
I  have  observed  in  France  that  other  offences  against 
property  decrease  during  a  famine,  by  an  analogous 
psychological  motive,  thus  presenting  a  sort  of 
statistical  paradox.  Thus,  for  example,  I  have  found 
that  as  oidium  and  phylloxera  are  more  effective  than 
severe  punishments  in  diminishing  the  number  of 
assaults  and  cases  of  unlawful  wounding,  so  famine 
succeeds  better  than  the  strongest  bars,  or  dogs  kept 
loose  in  the  prison  yards,  in  preventing  the  escape  of 
prisoners,  who  at  such  times  are  detained  by  the 
advantage  of  being  supported  at  the  public  expense. 

For  a  parallel  reason  in  1847,  a  famine  year,  whilst 


80  CRIMINAL  SOCIOLOGY. 

all  crimes  and  offences  against  property  increased  in 
an  extraordinary  fashion,  only  the  crimes  of  theft  and 
breach  of  confidence  by  household  servants  showed  a 
characteristic  decrease,  because  such  persons  were 
deterred  by  the  fear  of  being  dismissed  by  their 
employers  during  the  time  of  distress.  The  figures 
are  as  follows  : — 


France  (Assizes). 

1844. 

1845. 

1846. 

1847. 

Crimes  against  property     

3.767 

3.396 

3.581 

4.235 

Breach  of  confidence  by  household 

servants 

136 

128 

168 

104 

Thefts  by  the  same 

I.OOI 

874 

924 

896 

M.  Chaussinand  adds,  by  way  of  confirmation  of  my 
statement  that  during  economic  crises,  such  as  famine 
and  high  prices  of  grain,  the  number  of  cases  of  escape 
from  justice  also  decreases,  /or  "  thieves  and  tramps 
prefer  arrest,  in  order  to  escape  from  the  misery  which 
afflicts  them  outside  the  prison  walls." 

Two  fundamental  conclusions  of  criminal  sociology 
may  be  drawn  from  this  law  of  criminal  saturation. 

The  first  is  that  it  is  incorrect  to  assert  a  mechanical 
regularity  of  crime,  which  from  Quetelet's  time  has 
been  much  exaggerated.  There  has  been  a  too  literal 
insistance  on  his  famous  declaration  that  *'  the  budget 
of  crime  is  an  annual  taxation  paid  with  more  precise- 
ness  than  any  other  "  ;  and  that  it  is  possible  to  calcu- 
late beforehand  how  many  homicides,  poisoners,  and 
forgers  we  shall  have,  because  "  crimes  are  generated 
every  year  in  the  same  number,  with  the  same  punish- 
ments, in  the  same  proportions."  And  one  constantly 
meets  with  this  echo  of  the  statisticians,  that  "  from 
year  to  year  crimes  against  the  person  vary  at  the 


THE   DATA    OF  CRIMINAL    STATISTICS.  8 1 

most  by  one  in  twenty-five,  and  those  against  property 
by  one  in  fifty";  or,  again,  that  there  is  "a  law  of 
limitation  in  crime,  which  does  not  vary  by  more  than 
one  in  ten." 

This  opinion,  originated  by  Quetelet  and  other 
statisticians  after  an  inquiry  confined  to  the  more 
serious  crimes,  and  to  a  very  short  succession  of  years, 
has  already  been  refuted,  in  part  by  Maury  and 
Rhenisch,  and  more  plainly  by  Aberdare,  Mayr, 
Messedaglia  and  Minzlofif. 

In  fact,  if  the  level  of  criminality  is  of  necessity 
determined  by  the  physical  and  social  environment, 
how  could  it  remain  constant  in  spite  of  the  continual 
variations,  sometimes  very  considerable,  of  this  same 
environment  ?  That  which  does  remain  fixed  is  the 
proportion  between  a  given  environment  and  the 
number  of  crimes :  and  this  is  precisely  the  law  of 
criminal  saturation.  But  the  statistics  of  criminality 
will  never  be  constant  to  one  rule  from  year  to  year. 
There  will  be  a  dynamical  but  not  a  statical  regularity. 

Thus  the  element  of  fixity  in  criminal  sociology 
consists  in  asserting,  not  the  fatality  or  predestination 
of  human  actions,  including  crimes,  but  only  their 
necessary  dependence  upon  their  natural  causes,  and 
therewith  the  possibility  of  modifying  effects  by 
modifying  the  activity  of  these  causes.  And,  indeed, 
even  Quetelet  himself  recognised  this  when  he  said, 
"If  .we  change  the  social  order  we  shall  see  an 
immediate  change  in  the  facts  which  have  been  so 
constantly  reproduced.  Statisticians  will  then  have 
to  consider  whether  the  changes  have  been  useful 
or  injurious.      These    studies    therefore    show   how 


Hz  CRIMINAL   SOCIOLOGY, 

important  is  the  mission  of  the  legislator,  and  how 
responsible  he  is  in  his  own  sphere  for  all  the 
phenomena  of  the  social  order." 

The  second  consequence  of  the  law  of  criminal 
saturation,  one  of  great  theoretical  importance,  is  that 
the  penalties  hitherto  regarded,  save  for  a  few  platonic 
declarations,  as  the  best  remedies  for  crime,  are  less 
effectual  than  they  are  supposed  to  be.  For  crimes 
and  offences  increase  and  diminish  by  a  combination 
of  other  causes,  which  are  far  from  being  identical 
with  the  punishments  lightly  written  out  by  legislators 
and  awarded  by  judges. 

History  affords  us  various  impressive  examples. 

The  Roman  Empire,  when  society  had  fallen  into 
extreme  corruption,  recalling  many  symptoms  of  our 
own  epoch,  vainly  promulgated  laws  which  visited 
celibacy,  adultery,  and  incest — "  venus  prodigiosa  " — 
with  "  the  vengeance  of  the  sword  and  punishments 
of  the  utmost  severity."  Dio  Cassius  ("  Hist  Rom.," 
Ixxvi.  1 6)  says  that  in  the  city  of  Rome  alone,  after  the 
law  of  Septimus  Severus,  there  were  three  thousand 
charges  of  adultery.  But  the  stringent  laws  against 
these  crimes  continued  to  the  days  of  Justinian,  which 
shows  that  the  crimes  had  not  been  checked  ;  and,  as 
Gibbon  says  ("  Decline  and  Fall,"  ch.  44),  the 
Scatinian  law  against  "  venus  nefanda "  had  fallen 
into  abeyance  through  lapse  of  time  and  the  multi- 
tude of  offenders.  Yet  we  see  in  our  own  days,  as  in 
France,  that  there  are  some  who  would  oppose  celi- 
bacy with  no  other  remedy  than  a  law  passed  for  the 
purpose. 

Since  mediaeval  times  the  increasing  gentleness  of 


THE   DATA   OF   CRIMINAL   STATISTICS.  83 

manners  has  caused  a  diminution  of  crimes  of  blood, 
once  so  numerous  that  there  was  need  of  sundry 
"truces"  and  "peaces,"  notwithstanding  the  harsh 
penalties  of  previous  centuries.  And  Du  Boys 
called  Cettes  simple  because,  after  giving  a  table  ot 
shocking  punishments  in  the  Germany  of  his  day 
(the  fifteenth  century),  he  marvelled  that  all  these 
pains  and  torments  had  not  prevented  the  increase 
of  crimes. 

Imperial  Rome  deluded  herself  with  the  idea  that 
she  could  stamp  out  Christianity  with  punishments 
and  tortures,  which,  however,  only  seemed  to  fan  the 
flame.  In  the  same  way  Catholic  Europe  hoped  to 
extinguish  Protestantism  by  means  of  vindictive 
persecution,  and  only  produced  the  opposite  effect, 
as  always  happens.  If  the  Reformed  faith  does 
not  strike  root  in  Italy,  France,  and  Spain,  that  must 
be  explained  by  psychological  reasons  proper  to 
those  nations,  independently  of  the  stake  and  of 
massacres,  for  it  did  not  strike  root  even  when 
religious  belief  was  liberated  from  its  fetters.  This 
does  not  prevent  all  governments  in  every  land  from 
continuing  to  believe  that,  in  order  to  arrest  the 
spread  of  certain  political  or  social  doctrines,  there 
is  nothing  better  than  to  pass  exceptional  penal  laws, 
forgetting  that,  with  ideas  and  prejudices  just  as  with 
steam,  compression  increases  the  expansive  force. 

Popular  education  has  swept  away  the  so-called 
crimes  of  magic  and  witchcraft,  though  they  had 
withstood  the  most  savage  punishments  of  antiquity 
and  mediaeval  times. 

Blasphemy,  in   spite  of  the   slitting  of  the   nose. 


84  CRIMINAL   SOCIOLOGY, 

tongue,  and  lips,  enacted  by  the  penal  laws,  and 
continued  in  France  from  Louis  XI.  to  Louis  XV., 
was  very  common  in  the  middle  ages,  being  (like 
witchcraft,  trances,  and  self-immurement)  a  patho- 
logical or  abnormal  manifestation  of  religious  emotion, 
which  in  those  times  had  an  extraordinary  develop- 
ment. And  the  habit  of  blasphemy  diminished 
under  the  psychological  and  social  evolution  of  our 
own  days,  precisely  when  it  ceased  to  be  punished. 
Or,  rather,  it  continued  to  this  day,  as  in  Tuscany, 
where  the  Tuscan  penal  code  (Art.  136),  which 
survived  until  December  31,  1889,  still  punished  it 
with  five  years'  imprisonment.  The  illusion  as  to 
the  efficacy  of  punishment  is  so  deeply  rooted  that  a 
proposal  was  made  in  the  Senate,  in  1875,  to  include 
this  penalty  in  the  new  Italian  penal  code.  And  at 
Murcia,  in  Spain,  trials  for  blasphemy  have  lately 
been  re-established. 

Mittermaier  observed  that,  if  in  England  and 
Scotland  there  were  far  fewer  cases  of  false  witness, 
perjury,  and  resistance  to  authority  than  in  Ireland 
and  on  the  Continent,  this  must  be  due  in  great 
measure  to  national  character,  which  is  one  of  the 
hereditary  elements  of  normal  as  well  as  of  abnormal 
and  criminal  life. 

Thus  even  apart  from  statistics  we  can  satisfy 
ourselves  that  crimes  and  punishments  belong  to  two 
different  spheres ;  but  when  statistics  support  the 
teaching  of  history,  no  doubt  can  remain  as  to  the 
very  slight  (I  had  almost  said  the  absence  of  any) 
deterrent  effect  of  punishments  upon  crime. 

We  may  indeed  derive  a  telling  proof  from  statis- 


THE   DATA    OF  CRIMINAL   STATISTICS.  85 

tical  records,  by  referring  to  the  progress  of  repression 
in  France,  over  a  period  of  sixty  years,  as  I  have 
already  done  in  my  "  Studies  "  previously  quoted. 

When  we  speak  of  the  repression  of  crime,  we  must 
first  of  all  distinguish  between  that  which  is  due  to 
the  general  character  of  penal  legislation,  more  or  less 
severe,  and  that  which  is  secured  by  the  administra- 
tion by  the  judges  of  the  law  as  it  is.  Now,  so  far  as 
legislation  is  concerned,  the  growth  of  crime  in  France 
certainly  cannot  be  attributed  to  the  relaxation  of 
punishment.  The  legislative  reforms  which  have 
taken  place,  especially  in  1832  and  1863,  on  the 
general  revision  of  the  penal  code,  modified  punish- 
ments to  some  extent,  but  with  the  definite  purpose 
and  result,  as  shown  by  the  same  official  records  of 
criminal  statistics,  of  strengthening  the  repressive 
power  of  the  law  by  providing  for  the  application  of 
less  aggravated  punishments.  The  repugnance  of 
juries  and  judges  against  excessive  punishments,  and 
their  preference  for  acquittal,  is,  indeed,  a  psycho- 
logical law.  Moreover,  it  is  well  known  that  if  there  is 
in  Europe  a  penal  code  less  mild  than  any  of  the  rest, 
it  is  that  of  France,  which  is  the  oldest  of  those  now 
in  force,  and  still  retains  much  of  the  military  rigour 
of  its  origin.  And  it  must  be  added  that  for  certain 
crimes,  as  for  rapes  and  indecent  assaults,  which  are 
nevertheless  constantly  increasing  in  France,  the 
punishments  have  been  increased  by  several  succes- 
sive enactments.  The  same  is  true  of  extortion  by 
threats  of  exposure,  which  occurs  more  and  more 
frequently,  as  M.  Joly  also  observes,  in  spite  of  the 
severe  punishments  of  the  law  of  1863. 


86  CRIMINAL   SOCIOLOGY. 

The  question,  therefore,  is  reduced  to  judicial  re- 
pression, the  progress  whereof  must  be  observed  in 
the  past  half-century,  for  it  has  evidently  the  greatest 
influence  upon  crime.  Laws,  in  fact,  have  no  real 
operation  if  they  are  not  applied  more  or  less  rigor- 
ously ;  for  in  the  social  strata  which  contribute  most 
to  criminality  the  laws  are  known  only  by  their  prac- 
tical application,  which  is  also  the  only  truly  defensive 
function,  carrying  with  it  a  special  preventive  of 
the  repetition  of  the  crime  by  the  person  condemned. 

Thus  the  arguments  of  jurists  and  legislators  have 
not  much  value  for  the  criminal  sociologist  when  they 
are  based  solely  on  the  psychological  illusion  that  the 
dangerous  classes  trouble  themselves  about  the  shaping 
of  a  penal  code,  as  the  more  instructed  and  less  nume- 
rous classes  might  well  do.  The  dangerous  classes 
attend  to  the  sentences  of  the  judges,  and  still  more 
to  the  execution  of  those  sentences,  than  to  the 
articles  of  a  code.  In  this  connection  I  cannot  agree 
with  the  forecast  of  Garofalo  as  to  the  perilous  effect 
of  the  abolition  of  capital  punishment  in  Italy  on  the 
imagination  of  the  people  ;  for  he  was  well  aware 
that,  though  it  is  defined  in  various  articles  of  the  old 
code,  and  in  about  sixty  sentences  every  year,  the 
punishment  of  death  has  not  been  carried  out,  which 
is  the  essential  point,  for  the  last  fifteen  years. 

The  elements  which  determine  the  greater  or  less 
severity  of  judicial  repression  are  of  two  kinds: — 

1.  The  ratio  of  persons  acquitted  to  the  total 
number  of  prisoners  put  on  their  trial. 

2.  The  ratio  of  the  severest  punishments  to  the 
total  number  of  prisoners  condemned. 


THE  DATA   OF  CRIMINAL   STATISTICS.  87 

Certainly  the  proportion  of  acquittals  ought  not  to 
indicate  a  difference  in  the  severity  of  repression  as 
such,  for  condemnation  or  acquittal  ought  to  point 
merely  to  the  certainty  or  otherwise  of  guilt,  the 
sufficiency  or  insufficiency  of  the  evidence.  But,  as 
a  matter  of  fact,  the  proportional  increase  of  convic- 
tions does  partly  represent  greater  severity  on  the 
part  of  the  judges,  and  still  more  of  the  juries,  who 
display  it  by  attaching  weight  to  somewhat  uncon- 
vincing evidence,  or  in  too  readily  admitting  circum- 
stances which  tend  to  aggravate  the  offence.  This  is 
confirmed  also  by  the  rarity  of  acquittals  in  cases  of 
contumacy. 

Of  these  two  factors  the  former  is  certainly  the 
more  important,  for  it  is  a  psychological  law  that 
man,  in  regard  to  punishment  as  to  any  other  kind 
of  suffering,  is  more  affected  by  the  certainty  than  by 
the  gravity  of  the  infliction.  And  it  is  to  the  credit 
of  criminal  theorists  of  the  classical  school  that  they 
have  steadily  maintained  that  a  mild  yet  certain 
punishment  is  more  effectual  than  one  which,  being 
severe  in  itself,  holds  out  a  stronger  hope  of  escaping 
it.  Nevertheless  it  is  a  fact  that  they  have  carried 
the  theory  too  far,  by  seeking  to  obtain  excessive 
mitigations  and  abbreviations  of  punishment,  without 
exerting  themselves  to  secure  certainty  by  reforms  of 
procedure  and  police  administration. 

The  diminution  of  the  rate  of  acquittal  is  evident 
and  continuous,  both  at  the  Assizes  and  in  the 
Tribunals,  except  for  the  last  quadrennial  period. 
This  may  of  course  indicate  a  more  careful  manage- 
ment of  the  trials  by  the  judges ;  but  it  certainly  shows 


88 


CRIMINAL   SOCIOLOGY. 


an  undoubted  tendency  towards  increased  judicial 
severity,  which,  meanwhile,  has  not  arrested  the 
growth  of  crime. 

Percentage  of  Acquittals  in  France. 


Tried  in 

Assize  Courts. 

Tribunals. 

Total 

1826-30     ...    . 

..     39    . 

31      ... 

..     32 

I83I-5    ...  . 

..    42    . 

28      ... 

..     30 

1836-40     ...    . 

..     35     • 

22      ... 

..     23 

I84I-5     ...   . 

..     32     . 

. 

18      ... 

...      19 

1846-50     ...    . 

..     36     . 

16      ... 

..      17 

I85I-5    ...  . 

..    28     . 

12      .. 

...      13 

1856-60    ...    . 

..     24    . 

10      ... 

...      7 

I86I-5      ...    . 

..    24    . 

9     ... 

...      6 

1866-9     ...    • 

..     23     . 

17   ... 

...      8 

1872-6      ...    . 

..     20    . 

6    ... 

...      6 

1877-81    ...    . 

..    23     . 

5    - 

...      6 

1882-6     ...   . 

..    27     . 

6     ... 

...      6 

Percentage 

OF  ACQU 

ITTAl 

LS  IN  England. 

Criminal  Pi 

oceed 

ngs.        Summary  Proceeding*. 

1858-62    ...     . 

25 

34 

1863-7      ...     . 

24 

31 

1868-72    ...     . 

26 

.      24 

1873-7      ...     . 

25 

21 

1878-82    ...     . 

24 

21 

1883-7      ...    . 

22 

20 

Here  also  it  appears  that  the  growth  of  crime  in 
England,  though  less  than  in  France,  is  not  due  to 
the  weakening  of  judicial  severity  through  the  greater 
number  of  acquittals.  The  number  has,  in  fact,  con- 
stantly diminished,  especially  in  summary  proceed- 
ings, which  is  just  where  the  greatest  increase  of 
crime  is  manifest. 

Passing  now  to  the  other  factor  of  judicial  repres- 
sion, that  is  to  the  percentage  of  persons  sentenced  to 
graver  kinds  of  punishment,  we  have  to  take  into 
account,  amongst  assize  cases  in  France,  the  prisoners 


THE   DATA    OF  CRIMINAL   STATISTICS. 


89 


sentenced  to  death,  penal  servitude,  and  soHtar}''  im- 
prisonment, excluding  such  as  are  sentenced  to  cor- 
rectional punishment  (simple  imprisonment  and  fines) 
as  well  as  young  prisoners  sent  to  reformatories  ;  and 
in  regard  to  the  Tribunals,  we  must  take  the  percent- 
ages of  those  who  are  condemned  to  imprisonment, 
which  is  the  most  serious  punishment,  the  remainder 
being  fined,  or  handed  over  to  their  parents,  or  sent 
to  reformatories. 


TTi?  AMPir 

Condemned  at  Assizes 

Condemned 

by  Tribunals 

to  imprisonment 

f  KAn^Cn 

To  death.      To  penal  servitude. 

1826-30 

•••      2-5     58      ...     . 

.      ...        61 

I83I-5 

...      1-5    •• 

..     42 

.     ...      65 

1836-40 

•7    •• 

..     37 

.     ...      65 

I84I-5 

I 

..     40 

.     ...      61 

1846-50 

I 

..     39 

.     ...      62 

I85I-5     .. 

I'l 

..     48 

.     ...      61 

1856-60     ,. 

I 

..     49 

.     ...      61 

1861-5 

•6     .. 

..     48 

.     ...      64 

1866-9 

•5     .. 

.•     47 

.     ...       68 

1872-6 

•7     .. 

..    49 

.     ...      66 

1877-81     .. 

•7     .. 

..     50 

.     ...      66 

1882-6 

I 

..    49 

.     ...      65 

These  figures,  if  they  do  not  show  (as  might  have 
been  foreseen)  so  large  an  increase  of  severity  as  in 
the  percentages  of  acquittals,  yet  prove  that  repression 
has  not  diminished  even  in  the  serious  character  of 
the  punishments.  On  the  other  hand,  we  can  see 
that,  in  the  assize  cases,  excluding  the  first  period, 
before  the  revision  of  1832,  whilst  capital  punishment 
shows  a  certain  diminution  (especially  due  to  the  laws 
of  1832,  1848,  &c.,  which  reduced  the  number  of 
cases  involving  the  death  penalty),  though  con- 
tinuing at  a  certain  level  since  1861,  sentences  of 
penal  servitude  and  solitary  confinement  show  a  con- 


90  CRIMINAL   SOCIOLOGY. 

tinued  increase  from  the  second  period,  and  especially 
since  185 1. 

So  also  at  the  Tribunals,  except  for  a  few  oscilla- 
tions, as  in  the  ninth  period,  there  is  a  sustained 
increase  of  repression. 

And  the  fact  that  this  increased  ratio  of  the  more 
serious  punishments  actually  indicates  a  greater 
severity  on  the  part  of  the  judges  can  only  be  con- 
tested on  the  ground  of  a  simultaneous  increase  of 
the  more  serious  crimes  and  offences.  On  the  other 
hand,  we  note  in  France  a  general  decrease  of 
crimes  against  the  person  (except  for  assaults  on 
children),  and  still  more  of  crimes  against  property. 

There  is  also  a  striking  confirmation  in  the  corre- 
sponding acquittals  and  condemnations  of  a  more 
serious  character.  We  see,  in  fact,  that  the  more 
serious  condemnations  increase  precisely  when  the 
acquittals  decrease  (as  in  the  4th,  6th,  7th,  and  loth 
periods  at  the  Assizes,  and  the  2nd,  5th,  and  8th 
periods  at  the  Tribunals)  ;  whilst  in  the  years  of 
more  frequent  acquittals  there  is  also  a  diminution  of 
more  serious  punishments,  as  in  the  5th  and  8th 
periods  at  the  Assizes.  That  is  to  say,  the  two  sets 
of  statistics  actually  indicate  a  greater  or  less  severity 
on  the  part  of  juries  and  judges. 

This  firmer  repression  is  demonstrated  in  spite  of 
the  continued  increase  of  attenuating  circumstances, 
which  rose  at  the  Assizes  from  50  per  cent,  in  1833 
to  73  per  cent,  in  1886,  and  at  the  Tribunals  from  54 
per  cent,  in  1851  to  65  per  cent,  in  1886.  Neverthe- 
less it  is  a  fact  that  the  number  of  cases  tried  by 
default   at   the  Assizes   has   continuously  decreased 


THE  DATA   OF  CRIMINAL    STATISTICS. 


91 


from  a  yearly  average  of  647  in  1826-30  to  one  of 
266  in  1882-6. 

For  Italy  we  have  the  following  figures  : 


Pretors.     Tribunals. 


Assizes. 


Condemned  to 

Imprison- 

Condemned 

Penal 

servitude 

Slighter 

imprisonment. 

ment. 

to  death. 

for  life. 

temporary. 

punishts 

1874 

21 

79 

1-2 

5-6 

6S 

28 

5 

22 

80 

1*3 

6-S 

63 

29 

6 

23 

81 

1-3 

6-1 

66 

27 

7 

24 

82 

1-5 

7-2 

66 

25 

8 

25 

8s 

I 

7-6 

67 

25 

9 

25 

1-2 

6-3 

67 

25 

1880 

26 

— 

1*3 

S'S 

68 

25 

I 

24 

81 

17 

6-1 

6S 

27 

2 

23 

81 

IS 

6 

66 

27 

3 

23 

81 

17 

S-4 

64 

29 

4 

23 

81 

I  "3 

5*3 

64 

30 

5 

23 

81 

1-6 

S-4 

63 

30 

6 

21 

81 

1-6 

S7 

62 

30 

7 

21 

83 

I'l 

S-8 

63 

30 

8 

21 

82 

1*2 

47 

65 

29 

Thus,  once  more,  there  has  been  no  relaxation  of 
repression,  except  in  late  years  for  those  condemned 
by  the  Pretors  to  penal  servitude  for  life. 

The  conclusion,  therefore,  is  still  the  same,  namely 
that  judicial  repression,  in  France  and  Italy,  has 
grown  stronger  and  stronger,  whilst  criminality  has 
increased  more  and  more. 

In  this  fact,  again,  which  confutes  the  common 
opinion  that  the  sovereign  remedy  of  crime  is  the 
greater  rigour  of  punishment,  we  may  fairly  find  a 
positive  proof  that  the  penal,  legislative,  and  adminis- 
trative sj^stems  hitherto  adopted  have  missed  their 
aim,  which  can  be  nothing  else  than  the  defence  of 
society  against  criminals. 

Henceforth   we   must  seek,  through  the  study  of 


92  CRIMINAL   SOCIOLOGY, 

facts,  a  better  direction  for  penal  legislation  as  a 
function  of  society,  so  that,  by  the  observation  of 
psychological  and  sociological  laws,  it  may  tend,  not 
to  a  violent  and  always  tardy  reaction  against  crime 
already  evolved,  but  to  the  elimination  or  diversion  of 
its  natural  factors. 

This  fundamental  conclusion  of  criminal  statistics 
is  so  important  that  we  must  confirm  it  by  adding  to 
the  statistical  data  the  general  laws  of  biology  and 
sociology.  This  is  the  more  necessary  because  my 
position  as  first  stated  has  met  with  some  criticism. 

In  the  first  place,  it  is  easily  seen,  when  we  com- 
pare the  total  result  of  crime  with  the  varied  charac- 
ter of  its  anthropological,  physical,  and  social  factors, 
that  punishment  can  exert  but  a  slight  influence 
upon  it.  Punishment,  in  fact,  by  its  special  effect  as 
a  legal  deterrent,  acting  as  a  psychological  motive, 
will  clearly  be  unable  to  neutralise  the  constant  and 
hereditary  action  of  climate,  customs,  increase  of 
population,  agricultural  production,  economic  and 
political  crises,  which  statistics  invariably  exhibit  as 
the  most  potent  factors  of  the  growth  or  diminution 
of  criminality. 

It  is  a  natural  law  that  forces  cannot  conflict  or 
neutralise  each  other  unless  they  are  of  the  same 
kind.  The  fall  of  a  body  cannot  be  retarded, 
changed  in  direction  or  accelerated,  save  by  a  force 
homogeneous  with  that  of  gravity.  So  punishment, 
as  a  psychological  motive,  can  only  oppose  the 
psychological  factors  of  crime,  and  indeed  only  the 
occasional  and  moderately  energetic  factors  ;  for  it  is 


THE  DATA   OF  CRIMINAL   STATISTICS.  93 

evident  that  it  cannot,  as  a  preliminary  to  its  appli- 
cation, eliminate  the  organic  hereditary  factors  which 
are  revealed  to  us  by  criminal  anthropology. 

Punishment,  which  has  professed  to  be  such  a 
simple  and  powerful  remedy  against  all  the  factors 
of  crime,  is  therefore  a  panacea  whose  potency  is  far 
beneath  its  reputation. 

We  must  bear  in  mind  a  fact  which  is  familiar 
enough,  though  it  has  been  too  often  forgotten  by 
legislators  and  criminalists.  Society  is  not  a  homo- 
geneous aggregate,  but  on  the  contrary  an  organism, 
like  every  animal  organism,  composed  of  tissues  of 
varying  structure  and  sensibility.  Every  society,  in 
fact,  with  its  progressive  and  increasingly  distinctive 
needs  and  occupations,  is  a  product  of  the  union  of 
social  classes  which  differ  greatly  in  their  organic 
and  psychical  characteristics.  The  physical  consti- 
tution, the  habits,  sentiments,  ideas,  and  tendencies 
of  one  social  stratum  are  far  from  being  the  same 
as  those  of  other  strata.  Here  again  we  have,  as 
Spencer  would  say,  the  law  of  evolution  through  a 
departure  from  the  homogeneous  to  the  hetero- 
geneous, from  the  simple  to  the  complex,  or,  in  the 
words  of  Ardigo,  a  natural  formation  by  successive 
distinctions.  Amongst  savage  tribes  this  distinction 
of  the  social  strata  does  not  exist,  or  it  is  far  less 
marked  than  in  barbarian  societies,  and  still  less  than 
in  civilised  societies. 

Every  schoolmaster  with  a  bent  for  psychological 
observation   separates   his   pupils  into  three  classes. 
There  is  the  class  of  industrious  pupils  of  good  dis- 
position,  who   work   of  their   own    accord,   without 
8 


94  CRIMINAL   SOCIOLOGY. 

calling  for  strict  discipline  ;  that  of  the  ignorant  and 
idle  (degenerate  and  of  weak  nervous  force)  from 
whom  neither  mildness  nor  severity  can  obtain  any- 
thing worth  having  ;  and  that  of  the  pupils  who  are 
neither  wholly  industrious  nor  wholly  idle,  and  for 
whom  a  discipline  based  on  psychological  laws  may 
be  genuinely  useful. 

This  is  the  case  with  large  bodies  of  soldiers  or  of 
prisoners,  for  all  associations  of  men,  and  for  society 
as  a  whole.  These  partial  organisms,  due  to  the 
constant  relationships  of  a  life  more  or  less  in  com- 
mon, are  in  this  respect  reproductions  of  society  as  a 
whole,  just  as  a  fragment  of  crj'^stal  reproduces  the 
characteristics  of  the  unbroken  crystal.^ 

In  the  same  way,  from  the  standpoint  of  criminal 
sociology,  we  may  divide  the  social  strata  into  three 
analogous  categories — the  highest,  which  commits 
no  crimes,  organically  upright,  restrained  only  by 
the  authority  of  the  moral  sense,  of  religious  senti- 
ments and  public  opinion,  together  with  the  heredi- 
tary transmission  of  moral  habits.  This  class,  for 
which  no  penal  code  would  be  necessary,  is  un- 
fortunately very  small  ;  and   it  is  far  smaller  if,  in 

*  There  is,  however,  some  difference  between  the  manifestation  of 
the  activity  of  a  group  of  men  and  that  of  the  aggregate  society.  Be- 
tween psychology  which  studies  the  individual,  and  sociology  which 
studies  the  society,  I  think  there  is  room  for  a  collective  psychology,  to 
study  more  or  less  defined  groups.  The  phenomena  of  these  groups 
are  analogous,  but  not  identical  with  those  of  the  sociological  body 
properly  so  called,  according  as  the  union  is  more  or  less  definite. 
Collective  psychology  has  its  field  of  observation  in  all  unions,  however 
occasional,  such  as  the  public  street,  the  markets,  workshops,  theatres, 
meetings,  assemblies,  colleges,  schools,  barracks,  prisons,  and  so  forth. 
Many  practical  applications  of  the  data  of  collective  psychology  might 
be  given.  An  example  will  be  found  in  a  future  chapter,  when  I  come 
to  consider  the  psychology  of  the  jury. 


THE   DATA    OF   CRIMINAL   STATISTICS.  95 

addition  to  legal  and  apparent  criminality,  we  also 
take  into  account  that  social  and  latent  criminality 
through  which  many  men,  who  are  upright  so  far  as 
the  penal  code  is  concerned,  are  not  upright  by  the 
standard  of  morality. 

Another  class,  the  lowest,  is  made  up  of  individuals 
opposed  to  all  sense  of  uprightness,  who,  being  with- 
out education,  perpetually  dragged  back  by  their 
material  and  moral  destitution  into  the  primitive 
forms  of  the  brute  struggle  for  existence,  inherit 
from  their  parents  and  transmit  to-  their  children 
an  abnormal  organisation,  adding  degeneration  and 
disease,  an  atavistic  return  to  savage  humanity.  This 
is  the  nursery  of  the  born  criminals,  for  whom  punish- 
ments, so  far  as  they  are  legal  deterrents,  are  useless, 
because  they  encounter  no  moral  sense  which  could 
distinguish  punishment  by  law  from  the  risk  which 
also  attends  upon  every  honest  industry. 

Lastly  we  have  the  other  class  of  individuals  who 
are  not  born  to  crime,  but  are  not  firmly  upright, 
alternating  between  vice  and  virtue,  with  imperfect 
moral  sense,  education  and  training,  for  whom  punish- 
ment may  be  genuinely  useful  as  a  psychological 
motive.  It  is  just  this  class  which  yields  the  large 
contingent  of  occasional  criminals,  for  whom  punish- 
ments are  efficacious  if  they  are  directed  in  their 
execution  by  the  axioms  of  scientific  psychology, 
and  especially  if  they  are  aided  by  the  social  pre- 
vention which  reduces  the  number  of  opportunities 
of  committing  crimes  and  offences. 

Once  again  I  must  express  my  agreement  with 
M,    Garofalo,    who,    in    dealing   with    this    subject, 


96  CRIMINAL   SOCIOLOGY. 

,  insists  on  the  necessity  of  distinguishing  between 
the  different  classes  of  criminals  before  deciding  as 
to  the  efficacy  of  punishments. 

Yet  this  conclusion  as  to  the  very  limited  efficiency 
of  punishments,  which  is  forced  upon  us  by  facts, 
and  which,  as  Bentham  said,  is  confirmed  by  the 
application  of  each  punitive  act,  precisely  because 
its  previous  application  did  not  succeed  in  prevent- 
ing crime,  is  directly  opposed  to  general  public 
opinion,  and  even  to  the  opinion  of  jurists  and 
legislators. 

On  the  inception  or  the  growth  of  a  criminal  mani- 
festation, legislators,  jurists,  and  public  think  only  of 
the  remedies,  which  are  as  easy  as  they  are  illusory, 
of  the  penal  code,  or  of  some  new  Act  of  repression. 
Even  if  this  were  useful,  which  is  very  problematical, 
it  has  the  inevitable  disadvantage  of  making  men 
ignore  other  remedies,  far  more  profitable,  albeit 
more  difficult,  of  a  preventive  and  social  kind.  And 
this  tendency  is  so  common  that  many  of  those  who 
have  dwelt  upon  or  accepted  the  positive  movement 
of  the  new  school,  not  long  after  they  had  admitted 
that  I  was  in  the  right,  declared  impulsively  that 
"the  constant  commission  of  crime  arises  from  the 
lack  of  timely  repression,"  and  that  "  one  of  the  chief 
causes  of  the  growth  of  crime  in  Italy  is  the  mildness 
of  our  punishments."  Or  else  they  forgot  to  ask 
themselves  the  elementary  question  of  criminal 
sociology,  whether  and  how  far  punishments  have 
a  genuinely  defensive  force.  This  is  just  what 
happens  with  pedagogues  who  enter  upon  long 
discussions  on    the   various   methods  and    means  of 


THE   DATA    OF  CRIMINAL   STATISTICS  gy 

education,  without  asking  thennselves  beforehand 
whether  and  how  far  education  has  the  actual 
power  of  modifying  the  temperament  and  character 
which  heredity  stamps  upon  every  individual. 

These  conclusions  take  us  far  beyond  the  limit  of 
penal  severity,  and  at  the  same  time  they  suffice  to 
combat  the  objection  commonly  raised  against  those 
who  think,  like  ourselves,  that  repressive  justice  ought 
to  concern  itself  not  with  the  punishment  of  past 
crime,  but  with  the  prevention  of  future  crime.  For 
whilst  the  advocates  of  severity,  and  those  whom  I 
will  call  the  "  laxativists,"  virtually  think  (apart  from 
a  few  platonic  statements)  only  of  punishments  as 
remedies  of  offences,  we  on  the  other  hand  believe 
that  punishments  are  merely  secondary  instruments 
of  social  self-defence,  and  remedies  ought  to  be 
adapted  to  the  actual  factors  of  the  offence.  And 
since  the  social  factors  are  most  capable  of  modifica- 
tion, so  we  say  with  Prins  that  "  for  social  evils  we 
require  social  cures." 

M.  Tarde,  then,  was  not  quite  accurate  in  his 
remark  that  my  conviction  as  to  the  very  slight 
efficacy  of  punishments  is  a  mere  consequence  of 
my  ideas  on  the  anthropological  and  physical 
character  of  crime,  and  that,  "  on  the  contrary,  the 
preponderating  importance  which  he  has  assigned 
to  the  social  causes  logically  debars  him  from  accept- 
ing this  conclusion."  As  a  matter  of  fact,  punishment 
regarded  as  a  psychological  motive  so  far  as  it  is 
a  legal  deterrent,  and  as  a  physical  motive  so  far 
as  it  implies  the  confinement  of  the  person  con- 
demned, would    more    naturally  belong,  in   abstract 


gS  CRIMINAL   SOCIOLOGY. 

logic,  to  the  biological  and  physical  theory  of  crime. 
Whereas  it  is  precisely  because  I  recognise  the 
influence  of  social  environment,  in  addition,  that 
experimental  logic  convinces  me  that  punishment 
is  not  an  efficacious  remedy  of  crime,  unless  forces 
are  applied  beforehand  to  neutralise,  or  at  any  rate 
to  counteract,  the  social  factors  of  crime. 

And  if  this  is  not  a  new  conclusion,  as  one  of  our 
critics  observes  by  way  of  reproach — as  though  it 
were  not  one  of  the  characteristics  of  truth  to  repeat 
itself  persistently,  however  much  it  may  be  forgotten 
or  even  opposed — we  must  nevertheless  remark  that 
it  is  now  repeated  with  a  mass  of  new  observations 
and  definite  applications,  which  give  it  a  force 
unknown  to  mere  logical  deductions. 

The  classical  school  has  concerned  itself  simply 
with  mitigation  of  punishment  as  compared  with 
mediaeval  excess  ;  and  for  this  reason,  because 
every  age  has  its  own  mission,  it  could  not  also 
concern  itself  with  the  prevention  of  crimes,  which 
is  far  more  useful  and  efficacious.  A  few  isolated 
thinkers,  it  is  true,  wrote  a  few  bold  and  far-reach- 
ing pages  on  preventive  methods  in  opposition  to 
the  numerous  volumes  on  punishment  ;  but  their 
words  had  no  effect  upon  criminalists  and  legislators, 
because  science  had  not  yet  undertaken  the  positive 
and  methodical  observation  of  the  natural  factors  of 
crime. 

I  will  confine  myself  to  a  few  examples,  in  order  to 
show  that  amongst  practical  men,  as  amongst  public 
officials  and  legislators,  the  illusion  that  punishments 
are  the  true  panacea  of  crime  is  always  predominant. 


THE   DATA    OF  CRIMINAL    STATISTICS.  QQ 

Practical  men  declare  that  "  the  prohibitive  penal 
law  ought  to  be  regarded  as  the  first  and  most  im- 
portant of  preventive  laws."  The  prefets  in  their 
circulars,  being  concerned  about  the  increase  of 
crime,  put  forward  the  most  vigilant  and  severe 
repression  as  a  sovereign  remedy.  A  counsellor 
of  the  French  Cour  de  Cassation  writes  that  "  in 
a  worthy  system  of  social  police  there  is  no  better 
guarantee  for  order  and  safety  than  intimidation," 
The  Keeper  of  the  Seals,  in  his  report  on  French 
penal  statistics  for  1876,  speaking  of  the  continued 
increase  of  indecent  assaults,  comes  to  the  conclusion 
that  "  in  any  case,  only  firm  and  energetic  repression 
can  avail  against  a  lamentable  increase  of  crimes 
against  morality."  And  more  recently  another 
Keeper  of  the  Seals  ended  his  report  on  the 
statistics  of  1826  to  1880  by  observing  that  "the 
growth  of  crime  can  only  be  opposed  by  an  in- 
cessantly vigorous  repression."  M.  Tarde  agreed 
with  this  conclusion,  saying  that  "  if  crimes  are  only, 
as  has  been  said,  railway  accidents  of  a  society  travel- 
ling at  full  speed,  it  must  not  be  forgotten  that,  the 
faster  the  train,  the  stronger  must  be  the  brake  .  .  . 
and  it  is  certain  that  such  a  state  of  affairs  demands 
an  increase  or  a  new  departure  of  repression  and 
punishment." 

It  may  be  admitted  that  our  conclusion  is  not  a 
novelty ;  but,  as  Stuart  Mill  said,  there  are  two 
ways  of  effecting  useful  innovations,  to  discover  what 
was  not  known  before,  or  else  to  repeat  with  new 
demonstrations  the  truths  which  had  been  forgotten. 

And  this  illusion  as  to  the  influence  of  punishments 


100  CRIMINAL   SOCIOLOGY. 

is  so  widespread  that  it  is  well  to  inquire  into  its 
historic  and  psychological  arguments  ;  for,  as  Spencer 
says,  in  order  to  decide  as  to  the  value  of  an  idea,  it 
is  useful  to  examine  its  genealogy. 

We  may  pass  by  the  foundation  of  primitive 
vengeance,  which  from  the  age  of  private  combats 
passed  into  the  spirit  and  form  of  the  earliest  penal 
laws,  and  still  subsists  as  a  more  or  less  unconscious 
and  enfeebled  residuum  in  modern  society.  We  may 
also  pass  by  the  hereditary  effect  of  the  traditions 
of  mediaeval  severity,  which  excite  an  instinctive 
sympathy  for  stern  punishment  in  connection  with 
every  crime. 

But  one  of  the  main  reasons  of  this  tendency  is  an 
error  of  psychological  perspective,  whereby  men  have 
forgotten  the  profound  differences  of  the  ideas,  habits, 
and  sentiments  of  the  various  social  strata,  concerning 
which  I  have  spoken  above.  Through  this  forgetful- 
ness  the  honest  and  instructed  classes  confound  their 
own  idea  of  the  penal  law,  and  the  impression  it 
makes  upon  them,  with  the  idea  and  the  impression 
of  the  social  classes  from  which  the  majority  of 
criminals  are  recruited.  This  has  been  remarked 
upon  by  Beccaria,  Carmignani,  and  Holtzendorff 
amongst  the  classical  criminalists,  and  by  Lombroso 
and  others  of  the  new  school  who  have  studied  the 
slang  and  literature  of  criminals,  which  are  their 
IJsychological  mirror.  Again,  it  is  forgotten  that  for 
the  higher  classes,  apart  from  their  physical  and 
moral  repugnance  against  crime,  which  is  the  most 
powerful  repelling  force,  there  is  the  fear  of  public 
opinion,  almost  unknown  amongst  the  classes  which 


THE   DATA    OF   CRIMINAL   STATISTICS.         10 1 

have  stopped  short  at  a  lower  stage  of  human 
evolution. 

For  the  higher  classes  one  example  may  suffice. 
It  is  the  fact  observed  upon  by  Mr.  Spencer,  that 
gambling  debts  and  Stock  Exchange  bargains  are 
scrupulously  discharged,  though  for  them  there  is 
neither  penal  obligation  nor  evidence  in  writing. 
And  it  may  be  added  that  imprisonment  for  debt 
never  promoted  the  fulfilment  of  contracts,  nor  has  its 
abolition  discouraged  it. 

As  for  the  lower  classes,  one  visit  to  a  prison 
suffices.  There,  if  you  ask  a  prisoner  why  the  punish- 
ment did  not  deter  him  from  the  crime,  you  generally 
get  no  answer,  because  he  has  never  thought  about  it. 
Or  else  he  replies,  as  I  have  often  found,  that  "  if  you 
were  afraid  of  hurting  yourself  when  you  went  to 
work,  you  would  give  up  working."  These  indeed 
are  what  one  would  expect  to  be  the  feelings  prevail- 
ing amongst  the  lower  social  strata,  to  whom  honest 
sentiments  and  ideas,  which  for  us  are  traditional  and 
organic,  come  very  late — just  as  Mr.  Stanley  observed 
that  the  people  in  Central  Africa  are  only  now  begin- 
ning to  employ  stone  guns,  which  in  past  ages  were 
used  in  Europe. 

Another  fallacy  which  helps  to  strengthen  confi- 
dence in  punishments  is  that  the  effect  of  exceptional 
and  summary  laws  is  treated  on  the  same  basis  as 
that  of  the  ordinary  codes,  slow  and  uncertain  in  their 
procedure,  which  saps  all  their  force  by  the  chance  of 
immunity,  and  the  interval  between  the  unlawful  act 
and  its  legal  consequence. 

Lombroso  and  Tarde,  indeed,  have  confronted  me 


102  CRIMINAL  SOCIOLOGY. 

with  historic  examples  of  vigorous  and  even  savage 
repressions,  whereby  it  was  possible  to  stamp  out 
some  epidemic  crime.  But  these  examples  are  not 
conclusive,  for  I  have  shown  that,  as  soon  as  these 
exceptional  repressions  were  at  an  end,  as,  for  instance, 
after  the  death  of  Pope  Sixtus  V.,  brigandage  and 
other  crimes  were  persistently  renewed.  But  my  main 
rejoinder  is  this,  that  these  exceptional  repressions 
depend  upon  the  jus  belli^  and  therefore  cannot  enter 
into  the  ordinary  and  constant  methods  of  penal  ad- 
ministration. This  may  not  have  the  effect  of  an 
extraordinary  repression,  secured  by  a  somewhat  un- 
scrupulous promptitude,  which  strikes  innocent  and 
guilty  alike  ;  and  thus  it  is  impossible  to  treat  as  equal, 
or  even  to  compare,  the  influence  of  methods  which 
are  essentially  different. 

Another  false  comparison  is  drawn  between  the 
effective  force  of  various  punishments,  and  their 
potentiality  is  confounded,  whereas  it  is  necessary  to 
distinguish  the  punishment  of  the  written  code  from 
that  of  the  judge,  and  still  more  from  that  carried  into 
execution.  In  fact  it  is  only  natural  that  punishment 
should  more  or  less  terrify  the  criminal  who  has  been 
judged  and  is  about  to  be  condemned  ;  but  this  in  no 
way  proves  its  efficacy,  which  should  have  been  dis- 
played by  the  menace  of  the  law  in  guarding  the 
prisoner  against  the  crime.  Even  with  the  death 
penalty,  there  are  many  instances  of  condemned  per* 
sons  who,  through  congenital  insensibility,  submit  to 
it  cynically.  Moreover,  for  such  as  have  been  over- 
whelmed with  terror  when  the  moment  of  executi-- n 
arrived,  the  utmost  that  this  fact  can  prove  is  tiiat 


THE   DATA    OF   CRIMINAL   STATISTICS.         I03 

they  are  so  constituted  as  to  give  themselves  up  com- 
pletely to  the  impression  of  the  moment,  without  the 
energy  to  resist  it.  In  other  words,  so  long  as  the 
punishment  is  distant  and  uncertain,  they  were  not 
terrified,  but  having  always  yielded  to  the  impression 
of  the  moment,  they  yielded  to  the  criminal  impulse. 

For  other  punishments,  also,  it  is  known  that  puni- 
tive methods,  even  when  not  contrary  to  the  law,  as 
they  sometimes  are  in  Italy,  are  always  less  stern  than 
simple  folk  imagine  when  they  read  the  codes  and  the 
sentences.  And  criminals  naturally  judge  of  punish- 
ments by  their  own  experience,  that  is  to  say,  in 
accordance  with  their  practical  application,  and  not 
with  the  more  or  less  candid  threats  of  the  law- 
niaker. 

If  we  add  to  vindictive  feeling,  historic  traditions,  ob- 
livion of  bio-psychic  differences  of  the  social  strata,  the 
confounding  of  exceptional  laws  and  ordinary  punish- 
ments, and  of  the  varying  effective  force  of  punish- 
ment, the  attitude  of  the  public  mind  and  the  natural 
tendency  of  criminalists  to  think  only  of  their  two 
syllogistic  symbols  of  crime  and  punishment — if  we 
further  add  the  easy-going  idea  of  the  multitude,  that 
the  inscribing  of  a  law  in  the  statute-book  is  a  suffi- 
cient remedy  for  social  diseases,  we  can  readily  under- 
stand how  this  exaggerated  and  illusory  confidence 
in  punishment  is  so  persistent,  and  crops  up  in  every 
theoretical  or  practical  discussion,  in  spite  of  the 
strong  refutation  which  is  daily  afforded  by  facts 
and  psychological  observation. 

All  human  actions,  like  the  actions  of  animals, 
are  developed  between   the   two   opposite   poles   of 


104  CRIMINAL  SOCIOLOGY. 

pleasure  and  pain,  by  the  attraction  of  the  former  and 
the  repulsion  of  the  latter.  And  punishment,  which 
is  one  of  the  social  forms  of  pain,  is  always  a  direct 
motive  in  human  conduct,  as  it  is  also  an  indirect 
guide,  by  virtue  of  its  being  a  sanction  of  justice,  un- 
consciously strengthening  respect  for  the  law.  But 
still  this  psychological  truth,  whilst  it  demonstrates 
the  natural  character  of  punishment,  and  the  conse- 
quent absurdity  of  abolishing  it  as  absolutely  void  of 
efficacy,  does  not  destroy  our  conclusion  as  to  the 
slight  efficacy  of  punishment  as  a  counteraction  of 
crime. 

We  have  only  to  distinguish  between  punishment 
as  a  natural  sanction  and  punishment  as  a  social 
sanction  in  order  to  see  how  the  really  great  power 
of  natural  punishment  almost  entirely  disappears  in 
social  punishment,  which  in  all  our  systems  is  but  a 
sorry  caricature. 

The  mute  but  inexorable  reaction  of  nature  against 
every  action  which  infringes  her  laws,  and  the  grievous 
consequences  which  inevitably  follow  for  the  man  who 
has  infringed  them,  constitute  a  repression  of  the 
most  efficacious  kind,  wherein  every  man,  especially 
in  the  earlier  years  of  his  life,  receives  daily  and  never 
to  be  forgotten  lessons.  This  is  the  discipline  of 
natural  consequence,  which  is  a  genuine  educational 
method,  long  since  pointed  out  by  Rousseau,  and 
developed  by  Spencer  and  Bain. 

But  in  this  natural  and  spontaneous  form,  the 
punishment  derives  its  whole  force  from  the  inevitable 
character  of  the  consequences.  And  it  is  one  of  the 
few  observations  of  practical  psychology  which  have 


THE   DATA    OF  CRIMINAL   STATISTICS.         I05 

been  made  and  repeated  by  the  classical  students  of 
crime,  that  in  punishment,  and  especially  the  punish- 
ment of  death,  the  certainty  is  more  effectual  than  the 
severity.  And  I  will  add  that  even  a  small  uncer- 
tainty takes  away  from  a  pain  which  we  fear,  much  of 
its  repelling  •force,  whereas  even  a  great  uncertainty 
does  not  destroy  the  attraction  of  a  pleasure  which 
we  are  hoping  ibr. 

Here,  then,  we  have  a  primary  and  potent  cause  of 
the  slight  efficacy  of  legal  punishments,  in  the  pictur- 
ing of  the  many  chances  of  escape.  First  there  is  the 
chance  of  not  being  detected,  which  is  the  most 
powerful  spring  of  all  contemplated  crime  ;  then  the 
chance,  in  case  of  detection,  that  the  evidence  will  not 
be  strong  enough,  that  the  judges  will  be  merciful,  or 
will  be  deceived,  that  judgment  may  be  averted 
amidst  the  intricacies  of  the  trial,  that  clemency  may 
either  reverse  or  mitigate  the  sentence.  These  are  so  - 
many  psychological  causes  which,  conflicting  with  the 
natural  fear  of  unpleasant  consequences,  weaken  the 
repellent  force  of  legal  punishment,  whilst  they  are 
unknown  to  natural  punishment. 

There  is  also  another  psychological  condition  which, 
undermining  even  the  force  of  natural  punishment, 
almost  entirely  destroys  the  power  of  social  punish- 
ment ;  and  that  is  improvidence.  We  see,  in  fact, 
that  even  the  most  certain  natural  consequences  are 
defied,  and  lose  most  of  their  power  to  guard  an  im- 
provident man  from  anti-natural  and  dangerous  actions. 
Now  in  regard  to  legal  punishment,  even  apart  from 
passionate  impulse,  it  is  known  that  criminals,  occa- 
sional and  other,  are  specially  improvident,  in  common 


I06  CRIMINAL   SOCIOLOGY. 

with  savages  and  children.  This  weakness  is  con- 
spicuous enough  in  the  lower  and  less  instructed 
classes,  but  amongst  criminals  it  is  a  genuine  charac- 
teristic of  psychological  infirmity. 

Now,  whilst  a  very  slight  force  is  sufficient  to  pro- 
duce very  great  and  constant  effects,  when  it  acts  in 
harmony  with  natural  tendency  and  environment, 
every  process,  on  the  other  hand,  which  is  opposed  to 
the  natural  tendencies  of  man,  or  which  does  not 
follow  them  closely,  encounters  a  resistance  which 
triumphs  in  the  last  resort. 

Everyday  life  gives  us  many  examples.  The  uni- 
versity student,  when  he  gambles,  risks  on  a  single 
card  the  last  remnant  of  his  allowance,  and  prepares 
for  himself  a  thousand  privations.  Miners  and  work- 
men at  dangerous  trades  refuse  to  take  warning  by 
the  sight  of  comrades  whom  they  have  seen  dying  or 
repeatedly  attacked  by  disease.  M.  Despine  related 
that,  during  the  cholera  of  1866,  at  Bilbao,  there  were 
some  who  set  up  an  imitation  of  the  disease  in  order 
to  obtain  charitable  relief,  though  in  several  cases  death 
ensued.  M.  Fayet,  in  an  essay  on  the  statistics  of  ac- 
cused persons  in  France,  extending  over  twenty  years, 
remarked  that  specific  and  proportionately  greater 
criminality  was  displayed  by  notaries  and  bailiffs, 
who  knew  better  than  any  one  else  the  punishments 
fixed  by  law.  And  in  the  statistics  of  capital  punish- 
ment at  Ferrara,  during  nine  centuries,  I  discovered 
the  significant  fact  that  there  is  a  succession  of 
notaries  executed  for  forgery,  frequently  at  very  short 
intervals,  in  the  same  town.  This  attests  the  truth  of 
the  observation  made  by  Montesquieu  and  Beccaria, 


THE   DATA   OF  CRIMINAL   STATISTICS.         I07 

as  against  the  deterrent  power  of  the  death  penalty, 
for  men  grow  accustomed  to  the  sight ;  and  this  again 
is  confirmed  by  the  fact  mentioned  by  Mr.  Roberts,  a 
gaol  chaplain,  and  M.  Berenger,  a  magistrate,  that 
several  condemned  men  had  previously  been  present 
at  executions,  and  by  another  fact  mentioned  by 
Despine  and  Angelucci,  that  in  the  same  town,  and 
often  in  the  same  place,  in  which  executions  had  been 
carried  out,  murders  are  often  committed  on  the  same 
day. 

A  man  does  not  change  his  identity  ;  and  no  penal 
code,  whether  mild  or  severe,  can  change  his  natural 
and  invincible  tendencies,  such  as  inclination  to  plea- 
sure and  persistent  hope  of  impunity. 

Let  us  also  observe  that,  as  Mill  said,  the  permanent 
efficacy  of  any  measure  in  the  spheres  of  politics, 
economy,  and  administration,  is  always  inversely  pro- 
portional to  its  force  and  suddenness.  Now  punish- 
ment does  not  stand  the  test  even  of  this  sociological 
law,  for  in  its  essence  it  is  only  the  primitive  reaction 
of  force  against  force.  It  is  true  that,  as  Beccaria 
said,  the  classical  school  has  always  aimed  at  render- 
ing social  reaction  against  crime  less  violent ;  but 
that  is  not  enough.  Henceforward,  if  we  are  to  adapt 
ourselves  to  psychological  and  sociological  laws,  the 
development  of  our  defensive  administration  must 
tend  to  render  this  social  reaction  less  direct.  If  the 
struggle  for  existence  is  always  to  remain  the  supreme 
law  of  living  creatures,  yet  it  is  not  necessary  that  it 
should  always  be  developed  in  the  violent  forms  of 
primitive  humanity.  On  the  contrary,  one  of  the 
results  of  social  progress  is  to  make  the  struggle  for 
existence  less  violent  and  less  direct. 

SlAii:  ilUUi.iAL  6x.ii0vjiL, 
itOQ  ii^acnLrriii,  calk. 


I08  CRIMINAL   SOCIOLOGY. 

In  the  same  way,  the  continuous  struggle  between 
society  and  criminals,  instead  of  being  a  physical  and 
social  force,  directly  opposed  to  a  physical  individual 
force,  should  rather  become  an  indirect  system  of 
psychical  forces.  Penal  law  in  society  has  the  same 
qualities  as  education  in  the  family  and  pedagogy  in 
schools.  All  the  three  were  once  dominated  by  the 
idea  of  taming  human  passions  by  force  ;  the  rod  was 
supreme.  In  course  of  time  it  was  perceived  that  this 
produced  unexpected  results,  such  as  violence  and 
hypocrisy,  and  then  men  thought  fit  to  modify  their 
punishments.  But  in  our  own  days  schoolmasters  see 
the  advantage  of  relying  solely  on  the  free  play  of 
tendencies  and  bio-psychological  laws.  Similarly  the 
defensive  function  of  society,  as  Romagnosi  said,  in 
place  of  being  a  physical  and  repressive  system,  ought 
to  be  a  moral  and  preventive  system,  based  on  the 
natural  laws  of  biology,  psychology,  and  sociology. 

Force  is  always  a  bad  remedy  for  force.  In  the 
Middle  Ages,  when  punishments  were  brutal,  crimes 
were  equally  savage  ;  and  society,  in  demoralising 
rivalry  with  the  atrocity  of  criminals,  laboured  in  a 
vicious  circle.  Now,  in  the  lower  social  grades,  the 
brutal  man,  who  often  resorts  to  violence,  is  in  his 
turn  frequently  the  victim  of  violence  ;  so  that, 
amongst  criminals,  a  scar  is  somewhat  of  a  profes- 
sional distinction. 

To  sum  up,  our  doctrine  as  to  the  efficacy  of  punish- 
ments does  not  consist,  as  some  critics  too  sparing  of 
their  arguments  have  maintained,  in  an  absolute  nega- 
tion, but  rather  and  especially  in   objecting  to  the 


THE  DATA   OF  CRIMINAL  STATISTICS.         log 

traditional  prejudice   that  punishments  are  the  best 
and  most  efifectual  remedies  of  crime. 

What  we  say  is  this.  Punishment  by  itself,  as  a 
means  of  repression,  possesses  a  negative  rather  than 
a  positive  value  ;  not  only  because  it  has  not  the  same 
influence  on  all  anthropological  types  of  criminals,  but 
also  because  its  use  is  rather  to  preclude  the  serious 
mischief  which  would  result  from  impunity  than  to 
convert,  as  some  imagine  that  it  can,  an  anti-social 
into  a  social  being.  But  impunity  would  lead  to  a 
demoralisation  of  the  popular  conscience  in  regard  to 
crimes  and  offences,  to  an  increase  of  the  profound 
lack  of  foresight  in  criminals,  and  to  the  removal  of 
the  present  impediment  to  fresh  crimes  during  the 
term  of  incarceration. 

It  is  the  same  with  education,  the  modifying  power 
of  which  is  commonly  exaggerated.  Education, 
though  it  has  an  enduring  influence  on  children,  and 
is  therefore  more  effectual  than  punishment,  is  far 
more  serviceable  in  eliminating  anti-social  tendencies, 
whereof  we  all  possess  the  germs,  than  in  any  sup- 
posed creation  of  social  tendencies  and  forces  which 
were  not  present  from  birth. 

Thus,  whilst  the  consequences  of  impunity  and 
lack  of  education  are  serious  and  mischievous,  still 
this  does  not  prove  conversely  that  punishment  and 
education  have  in  reality  so  positive  an  influence  as 
is  commonly  attributed  to  them. 

It  is  precisely  on  the  ground  of  this  negative,  yet 
real  efficacy  of  punishments,  especially  whilst  they 
are  being  carried  out,  that,  whilst  we  appreciate  the 
mitigation   of    punitive    discipline    which   has   been 

9 


no  CRIMINAL   SOCIOLOGY. 

achieved  by  the  classical  school,  we  believe,  on  the 
other  hand,  that  their  abbreviation  of  the  term  of 
punishments  is  altogether  mistaken  and  dangerous. 
We  admit  that  punishment  ought  not  to  be  an 
arbitrary  and  inhuman  torture,  and  for  this  reason 
we  have  no  sympathy  with  the  system  of  solitary 
confinement,  now  so  much  in  fashion  with  the 
classical  jurists  and  prison  authorities,  precisely 
because  it  is  inhuman,  as  well  as  unwise  and  need- 
lessly expensive. 

It  is  a  psychological  absurdity  and  a  social  danger, 
which  nevertheless  underlies  the  new  Italian  penal 
code,  that  punishment  ought  to  consist  more  and 
more  in  a  short  isolation  of  the  prisoner.  For,  setting 
aside  the  well-known  results  of  short  punishments, 
such  as  corruption  and  recidivism,  it  is  evident  that 
in  this  way  punishment  is  deprived  of  its  main 
element  of  negative  efficiency  against  crime,  as  well  as 
of  its  effect  in  preventing  crime  during  the  incarcer- 
ation of  the  criminal. 


II. 


Since  punishments,  instead  of  being  the  simple 
panacea  of  crime  which  popular  opinion,  encouraged 
by  the  opinions  of  classical  writers  on  crime  and  of 
legislators,  imagine  them,  are  very  limited  in  their 
deterrent  influence,  it  is  natural  that  the  criminal 
sociologist  should  look  for  other  means  of  social 
defence  in  the  actual  study  of  crimes  and  of  their 
natural  origin. 

We  arc  taught  by  the  everyday  experience  of  the 


THE  DATA   OF  CRIMINAL  STATISTICS.         Ill 

family,  the  school,  associations  of  men  and  women, 
and  the  history  of  social  life,  that  in  order  to  lessen 
the  danger  of  outbreaks  of  passion  it  is  more  useful 
to  take  them  in  their  origin,  and  in  flank,  than  to  meet 
them  when  they  have  gathered  force. 

Bentham  relates  that  in  England  the  delays  caused 
by  hard-drinking  couriers,  who  used  to  be  heavily  fined 
without  any  good  result,  were  obviated  by  combining 
passenger  traffic  with  the  postal  service.  Employers 
of  labour  secure  industry  and  the  most  productive 
work  far  more  easily  by  offering  a  share  of  the 
realised  profits  than  by  a  system  of  fines.  In  the 
German  universities,  academic  jealousies  and  intoler- 
ance have  been  in  great  measure  overcome  by  paying 
the  professors  in  proportion  to  the  number  of  their 
pupils,  so  that  the  Faculties  find  it  to  their  interest 
to  engage  and  encourage  the  best  professors,  in  order 
to  attract  as  many  students  as  possible.  Thus  the 
activity  and  zeal  of  professors,  magistrates,  and 
officials  would  be  stimulated  if  their  remuneration 
depended  not  only  on  the  automatic  test  of  seniority, 
but  also  on  the  progress  displayed  by  publications, 
sentences  not  reversed,  settlements  not  cancelled,  and 
the  like.  It  is  better  to  regulate  the  disturbing  rest- 
lessness of  children  by  timely  diversions  rather  than 
by  attempting  to  repress  them  in  a  manner  injurious 
to  their  physical  and  moral  health.  So  in  lunatic 
asylums  and  prisons,  work  is  a  better  means  of 
order  and  discipline  than  chains  and  castigation. 
In  brief,  we  obtain  more  from  men  by  consulting 
their  self-respect  and  interests  than  by  threats  and 
restraint. 


112  CRIMINAL   SOCIOLOGY, 

If  the  counteraction  of  punishment  must  inevitably 
be  opposed  to  criminal  activity,  still  it  is  more  con- 
ducive to  social  order  to  prevent  or  diminish  this 
activity  by  means  of  an  indirect  and  more  effective 
force. 

In  the  economic  sphere,  it  has  been  observed  that 
when  a  staple  product  fails,  recourse  is  had  to  less 
esteemed  substitutes,  in  order  to  supply  the  natural 
wants  of  mankind.  So  in  the  criminal  sphere,  as  we 
are  convinced  by  experience  that  punishments  are 
almost  devoid  of  deterrent  effect,  we  must  have 
recourse  to  the  best  available  substitutes  for  the 
purpose  of  social  defence. 

These  methods  of  indirect  defence  I  have  called 
penal  substitutes.  But  whereas  the  food  substitutes 
are  as  a  rule  only  secondary  products,  brought  into 
temporary  use,  penal  substitutes  should  become  the 
main  instruments  of  the  function  of  social  defence,  for 
which  punishments  will  come  to  be  secondary  means, 
albeit  permanent.  For  in  this  connection  we  must 
not  forget  the  law  of  criminal  saturation,  which  in 
every  social  environment  makes  a  minimum  of  crime 
inevitable,  on  account  of  the  natural  factors  insepar- 
able from  individual  and  social  imperfection.  Punish- 
ments in  one  form  or  another  will  always  be,  for  this 
minimum,  the  ultimate  though  not  very  profitable 
remedy  against  outbreaks  of  criminal  activity. 

These  penal  substitutes,  when  they  have  once  been 
established  in  the  conscience  and  methods  of  legis- 
lators, through  the  teaching  of  criminal  sociology, 
will  be  the  recognised  form  of  treatment  for  the 
social   factors   of   crime.       And   they   will    also   be 


THE  DATA   OF  CRIMINAL   STATISTICS.         II3 

more  possible  and  practical  than  that  universal  social 
metamorphosis,  direct  and  uncompromising,  insisted 
on  by  generous  but  impatient  reformers,  who  scorn 
these  substitutes  as  palliatives  because  humanitarian 
enthusiasm  causes  them  to  forget  that  social  organisms, 
like  animal  organisms,  can  be  only  partially  and 
gradually  transformed. 

The  idea  of  these  penal  substitutes  amounts,  in 
short,  to  this.  The  legislator,  observing  the  origins, 
conditions,  and  effects  of  individual  and  collective 
activity,  comes  to  recognise  their  psychological  and 
sociological  laws,  whereby  he  will  be  able  to  obtain 
a  mastery  over  many  of  the  factors  of  crime,  and 
especially  over  the  social  factors,  and  thus  secure 
an  indirect  but  more  certain  influence  over  the 
development  of  crime.  That  is  to  say,  in  all  legis- 
lative, political,  economic,  administrative,  and  penal 
arrangements,  from  the  greatest  institutions  to  the 
smallest  details,  the  social  organism  will  be  so  adjusted 
that  human  activity,  instead  of  being  continually  and 
unprofitably  menaced  with  repression,  will  be  in- 
sensibly directed  into  non-criminal  channels,  leaving 
free  scope  for  energy  and  the  satisfaction  of  individual 
needs,  under  conditions  least  exposed  to  violent  dis- 
turbance or  occasions  of  law-breaking. 

It  is  just  this  fundamental  idea  of  penal  substitutes 
which  shows  how  necessary  it  is  that  the  sociologist 
and  legislator  should  have  such  a  preparation  in 
biology  and  psychology  as  Mr.  Spencer  justly 
insisted  on  in  his  "  Introduction  to  Social  Science." 
And  it  is  the  fundamental  idea  rather  than  the  sub- 
stitutes themselves  that  we  should  bear  in  mind  if  we 


114  CRIMINAL   SOCIOLOGY. 

would  realise  their  theoretical  and  practical  value  as 
part  of  a  system  of  criminal  sociology. 

As  for.  the  efficacy  of  any  particular  penal  sub- 
stitute, I  readily  admit,  in  some  sense  at  least,  the 
partial  criticisms  which  have  been  passed  upon  them. 
Apart  from  such  as  simply  say  that  they  do  not 
believe  in  the  use  of  alternatives  to  punishment, 
and  such  as  confine  themselves  to  the  futile  question 
whether  this  theory  belongs  to  criminal  science  or 
to  police  administration,  a  majority  of  criminal  soci- 
ologists have  now  definitely  accepted  the  doctrine  of 
penal  substitutes.  This  theory  is  accepted,  not  as 
an  absolute  panacea  of  crime,  but,  as  I  have  always 
stated  it,  in  the  sense  of  a  combination  of  measures 
analogous  to  penal  repression  ;  in  place  of  trusting 
solely  to  repression  for  the  defence  of  society  against 
crime. 

Let  us  take  note  of  a  few  examples. 

I.  In  the  Economic  Sphere. — Free  Trade  (apart  from 
the  temporary  necessity  of  protecting  a  particular 
manufacturing  or  agricultural  industry),  by  preventing 
famines  and  exceptional  high  prices  of  and  taxes  on 
food,  eliminates  many  crimes  and  offences,  especially 
against  property. — Unrestricted  emigration  is  a  safety- 
valve,  especially  for  a  country  in  which  this  pheno- 
menon, assuming  large  proportions,  carries  off  many 
persons  who  are  easily  driven  to  crime  by  wretched- 
ness, or  by  their  unbalanced  energy.  Thus  the 
number  of  recidivists  has  diminished  in  Ireland, 
not  by  virtue  of  her  prison  systems,  but  by  emi- 
gration, which  reached  forty-six  per  cent,  of  released 
prisoners.     In  Italy,  also,  there  has  been  a  decrease 


THE  DATA   OF  CRIMINAL  STATISTICS.         IIJ 

of  crime  since  1880,  owing  to  other  causes,  such  as 
mild  winters  and  plentiful  harvests,  but  also  through 
a  vast  increase  of  emigration. — Smuggling,  which  for 
centuries  resisted  extremely  harsh  punishments,  such 
as  amputation  of  the  hand,  and  even  death,  and  which 
still  resists  prison  and  the  fire-arms  of  the  revenue 
officers,  is  suppressed  by  the  lowering  of  the  import 
tariff,  as  M.  Villerme  has  shown  in  the  case  of 
France.  So  that  everyday  facts  justify  the  system  of 
Adam  Smith,  who  said  that  the  law  which  punished 
smuggling,  after  creating  the  temptation,  and  which 
increased  the  punishment  when  it  increased  the  temp- 
tation, was  opposed  to  all  justice ;  whilst  Bentham, 
on  the  contrary,  departing  from  his  maxim  that  the 
punishment  ought  to  be  dreaded  more  strongly  than 
the  offence  attracted,  called  for  the  stern  repression 
of  smuggling. — The  system  of  taxation  which  touches 
wealth  and  visible  resources  instead  of  the  prime 
necessaries  of  life,  and  which  is  proportional  to  the 
taxpayer's  income,  diminishes  the  systematic  frauds 
which  no  punishment  availed  to  stop,  and  it  will  also 
abolish  the  arbitrary  and  exaggerated  fiscal  traditions 
which  have  been  the  cause  of  rebellions  and  outrages. 
In  fact,  Fr^gier  describes  the  criminal  industries  which 
are  called  into  existence  by  octrois,  and  which  will 
disappear  with  the  abolition  of  these  absurd  and  un- 
just duties.  And  whilst  M.  Allard  demonstrated 
that  a  decrease  of  taxes  on  necessaries  would  have 
beneficial  effects,  not  only  in  economic  affairs  but 
also  in  respect  of  commercial  frauds,  the  Report  on 
French  Criminal  Statistics  for  1872  calmly  continued 
to  call  for  more  severe  repression  of  such  frauds.     To 


Il6  CRIMINAL  SOCIOLOGY. 

this  M.  Mercier  replied  that  if  the  cause — that  is  to 
say,  disproportionate  taxes — were  not  removed,  it 
would  be  impossible  to  prevent  the  effects. — Im- 
munity from  taxation  for  the  minimum  necessary 
to  existence,  by  preventing  distraint,  and  the  con- 
sequent diminution  of  small  properties,  which  means 
the  increase  of  the  very  poor,  will  obviate  many 
crimes,  as  we  see  from  the  agrarian  conditions  in 
Ireland.  Thus  there  is  a  demand  in  Italy  for  the 
inalienability  of  small  properties,  as  in  America 
under  the  Homestead  Exemption  Law. — Public 
works,  during  famine  and  hard  winters,  check  the 
increase  of  crimes  against  property,  the  person,  and 
public  order.  For  instance,  during  the  scarcity  of 
1853-5  in  France,  there  was  no  such  enormous 
increase  of  theft  as  during  the  famine  of  1847,  simply 
because  the  Government  set  up  vast  relief  works  in 
the  winter  months. 

The  taxes  and  other  indirect  restrictions  on  the 
production  and  sale  of  alcohol  are  far  more  efficacious 
than  our  more  or  less  enormous  gaols.  The  question 
of  pronounced  and  chronic  drunkenness  has  increased 
in  gravity,  owing  to  its  effect  upon  the  physical  and 
moral  health  of  the  people. 

In  France  the  average  consumption  of  wine,  esti- 
mated at  62  litres  (13  64  gallons)  per  head  in  1829, 
exceeded  100  litres  in  1869  ;  and  in  Paris  the  average 
of  120  litres  in  1819-30,  reached  227  litres  in  1881. 
The  average  yearly  consumption  of  alcohol  in  France 
rose  from  '93  in  1829  to  3-24  in  1872,  and  3*9  in  1885, 
the  rates  in  a  few  towns  being  still  higher.  The  total 
manufacture  of  alcohol  in  France  (95  per  cent  of 


THE  DATA   OF  CRIMINAL   STATISTICS,         II7 

which  is  consumed  in  the  form  of  drink)  rose  from 
479,680  hectolitres  in  1843  to  1,309,565  in  1879,  and 
2,004,000  in  1887.  Simultaneously,  we  have  seen 
that  there  was  an  increase  of  crimes  and  offences  in 
PVance,  suicides  in  particular  having  increased  from 
1,542  in  1829  to  8,202  in  1887. 

Moreover  I  have  shown  by  a  special  table  {Archivio 
di  Psichiatria)  that  in  France,  despite  a  certain  inevit- 
able variation  from  year  to  year,  there  is  a  manifest 
correspondence  of  increase  and  decrease  between  the 
number  of  homicides,  assaults,  and  malicious  wound- 
ing, and  the  more  or  less  abundant  vintage,  especially 
in  the  years  of  extraordinary  variations,  whether  of 
failure  of  the  vintage  (1853-5,  1859,  1867,  1873, 
1878-80),  attended  by  a  remarkable  diminution  of 
crime  (assaults  and  wounding),  or  of  abundant  vin- 
tages (1850,  1856-8,  1862-3,  1865,  1868,  1874-5) 
attended  by  an  increase  of  crime. 

I  was  also  the  first  to  show  that  in  the  vintage 
months  there  is  an  increase  of  occasional  crimes  and 
offences  against  the  person,  owing  to  that  connection 
between  drink  and  crime  which  had  already  been 
remarked  upon  by  M.  Pierquiii  amongst  others,  and 
illustrated  by  the  newspaper  reporters  on  the  days 
which  follow  Sundays  and  holidays. 

But  apart  from  their  natural  variation,  the  connec- 
tion between  drink  and  crime  is  definitely  established. 
Every  day  we  have  the  confirmation  of  Morel's  state- 
ment, that  "alcoholism  has  produced  a  demoralised 
and  brutalised  class  of  wretched  beings,  characterised 
by  an  early  depravation  of  instincts,  and  by  indulgence 
in  the  most  immoral  and  dangerous  actions."     It  is 


Il8  CRIMINAL   SOCIOLOGY. 

useless  to  quote  again  in  this  place  the  data  of 
psycho-pathology  and  legal  medicine,  or  those  of 
prison  statistics  relating  to  imprisoned  drunkards, 
or  to  tavern  brawls  as  the  proved  causes  of  crime. 

Nevertheless  it  is  a  fact  that  the  relation  of  cause 
and  effect  between  drink  and  crime  has  recently  been 
denied,  with  the  aid  of  arguments  based  upon  statistics. 
M.  Tammeo  opened  the  discussion  by  observing  that 
the  countries  of  Europe  and  the  provinces  of  Italy 
distinguished  by  the  largest  consumption  of  alcohol, 
show  lower  ratios  under  the  worst  crimes  of  violence. 
He  gave  to  his  remark  a  relative  and  limited  value, 
for  he  only  denied  that  the  abuse  of  liquor  was  the 
most  active  cause  of  crime.  After  him  M.  Fournier 
de  Flaix,  maintaining  the  same  proposition  with  the 
same  statistical  arguments,  and  admitting  that 
"  alcohol  is  a  special  scourge  for  the  individual  who 
indulges  in  it,"  yet  concluded  that  "  alcoholism  is  not 
a  scourge  which  menaces  the  European  race."  And 
he  repeated  that  the  nations  which  consumed  the 
greatest  quantity  of  alcohol  show  a  slighter  frequency 
of  crime,  especially  against  the  person.  Lastly  M. 
Colajanni  enlarged  upon  the  same  proposition,  using 
the  statistical  data  so  fully  set  out  by  M.  Kummer, 
and  drew  a  still  more  positive  conclusion,  that  "  there 
is  a  lack  of  constancy,  regularity,  and  universality  in 
the  relations,  coincidence,  and  sequence,  as  between 
alcoholism  and  crime  and  suicide  ;  so  that  it  is  im- 
possible to  establish  any  statistical  relation  of  cause 
and  effect  between  these  phenomena." 

Passing  over  the  grave  errors  of  fact  in  M.  Cola- 
janni's  brochure,  I  will    only  observe  that  this  pro- 


THE  DATA   OF   CRIMINAL    STATISTICS.         IIQ 

position    is    a    pure    misapprehension    of    statistical 
logic. 

If  we  once  admit  (and  unfortunately  it  cannot  be 
denied)  the  bad  influence  of  alcohol  on  bodily  and 
mental  health,  in  the  form  of  spirits  as  well  as  of 
wine — as  to  which  it  is  not  correct  to  say  that  the 
southern  departments  are  not  consumers  of  alcohol — 
it  cannot  be  maintained  that  alcohol,  which  is  physi- 
cally and  morally  injurious  to  individuals,  is  not 
hurtful  to  nations,  which  are  but  aggregates  of 
individuals. 

There  is  an  easy  answer  to  the  statistical  argu- 
ments, (i)  A  symmetrical  and  continuous  agreement 
of  figures  is  never  found  in  any  collection  of  statistics, 
for  in  all  that  concerns  a  society  the  intervention  of 
individual,  physical,  and  social  causes  is  inevitable. 
(2)  A  negative  conclusion  from  these  partial  and 
natural  disagreements  (for  it  is  especially  true  in 
biology  and  sociology  that  every  rule  has  its  excep- 
tions, due  to  intervening  causes)  would  only  be 
justified  if  it  had  been  maintained  that  alcoholism 
is  the  sole  and  exclusive  cause  of  crime.  But  as 
this  has  never  been  asserted  by  anybody,  all  the 
statistical  arguments  of  Fournier  and  Colajanni  are 
based  on  a  misapprehension.  And  unfortunately 
they  do  not  destroy  the  link  of  causality  between 
drink  and  crime.  This  connection  is  occasional,  in 
assaults,  wounding,  and  homicide  in  acute  alcoholism. 
It  is  habitual,  in  the  case  of  chronic  alcoholism,  as  in 
crimes  against  property,  the  person,  morality,  and 
public  officers.  And  this  in  spite  of  the  relatively 
low  figures,  though  lower  than  the  facts  warrant,  con- 


120  CRIMINAL  SOCIOLOGY. 

tained  in  the  general  statements,  apart  from  special 
and  scientific  inquiries  into  alcoholism  as  a  direct  and 
manifest  cause  of  crime  and  suicide. 

I  wrote  as  early  as  1881  that  alcoholism,  prior  to 
its  becoming  a  cause,  is  the  effect  of  wretched  social 
conditions  in  the  poorer  classes ;  and  that  to  the 
one-sided  simplicity  of  economic  causes  it  is  neces- 
sary to  add  certain  bio-psychical  conditions  and 
conditions  of  physical  environment,  which  go  far 
to  determine  the  geographical  distribution  of  spirit- 
alcoholism  (chronic  and  more  serious,  in  northern 
countries  and  provinces)  and  wine-alcoholism  (acute 
and  less  deep-seated,  in  the  countries  and  provinces 
of  the  south). 

It  was  therefore  natural  that  indirect  measures 
against  alcoholism  should  have  been  resorted  to  long 
ago,  such  as  the  raising  of  the  tax  on  alcoholic  drinks, 
and  the  lowering  of  that  on  wholesome  beverages, 
such  as  coffee,  tea,  and  beer ;  strict  limitation  of 
the  number  of  licenses  ;  increased  responsibility  of 
license-holders  before  the  law,  as  in  America ;  the 
expulsion  of  tipsy  members  from  workmen's  societies  ; 
the  provision  of  cheap  and  wholesome  amusements ; 
the  testing  of  wines  and  spirits  for  adulteration  ; 
better  organised  and  combined  temperance  societies  ; 
the  circulation  of  tracts  on  the  injurious  effects  of 
alcohol  ;  the  abolition  of  certain  festivals  which 
tended  rather  to  demoralisation  than  to  health; 
discouragement  of  the  custom  of  paying  wages  on 
Saturday  ;  the  establishment  of  voluntary  temperance 
homes,  as  in  America,  England,  and  Switzerland. 

North   America,  England,   Sweden   and   Norway, 


THE   DATA   OF  CRIMINAL   STATISTICS.         121 

France,  Belgium,  Holland,  and  Switzerland  have 
applied  remedies  against  drunkenness  (to  the  length 
of  a  State  monopoly  of  drink  in  Switzerland)  ;  but 
with  too  much  zeal  for  public  revenue,- and,  under  the 
pretext  of  public  health,  almost  exclusively  framed 
with  a  view  to  duties  on  manufacture,  distribution, 
and  consumption.  Yet  these  duties  are  quite  in- 
adequate by  themselves,  and  may  even  tend  to  the 
injury  of  the  physical  and  moral  health  of  the  nation, 
the  increase  of  price,  leading  to  frauds  and  adultera- 
tion. 

Penal  laws  against  drunkenness,  naturally  resorted 
to  in  all  countries,  are  far  from  being  effectual.  There 
is  so  far  no  system  of  direct  and  indirect  measures 
against  alcoholism,  duly  co-ordinated,  beyond  taxa- 
tion and  punishment.  And  we  perceive,  as  for  instance 
in  France,  in  spite  of  the  repressive  law  introduced  by 
my  distinguished  friend  Senator  Roussel  (January, 
1873),  and  in  spite  of  the  extremely  high  duties, 
which  were  doubled  in  1872  and  1880,  that  alcoholism 
persists  with  a  terrible  and  fatal  increase.  So  it  is, 
more  or  less,  in  every  country  still,  in  spite  of  duties 
and  punishments. 

The  irregularity  of  wages,  and  the  deceitful  vigour 
imparted  by  the  first  recourse  to  alcohol,  the  poverty 
and  excessive  toil  of  the  working  classes,  insufficiency 
of  food,  inherited  habits,  and  the  lack  of  efficacious 
preventive  measures,  are  influences  which  prevent  the 
working  man  from  resisting  this  scourge  ;  and  no 
fiscal  or  repressive  law,  acting  solely  by  direct  com- 
pulsion, will  ever  be  able  to  paralyse  these  natural 
tendencies,  which  can  only  be  weakened  by  indirect 


122  CRIMINAL   SOCIOLOGY. 

measures.  On  the  other  hand,  when  we  remember 
that  habitual  intoxication,  so  common  in  mediaeval 
days  amongst  the  nobles  and  townsfolk,  has  grown 
less  and  less  frequent  in  those  classes  (aided  by  the 
introduction  and  rapid  diffusion  of  coffee  since  the 
time  of  Louis  XIV.),  it  is  possible  to  hope  that  the 
improvement  of  economic,  intellectual,  and  moral 
conditions  amongst  the  populace  will  gradually  suc- 
ceed in  modifying  this  terrible  plague  of  drink,  which 
cannot  be  cured  all  at  once. 

To  continue  our  illustrations  of  penal  substitutes, 
we  see  that  the  substitution  of  metallic  money  for  a 
paper  medium  decreases  the  number  of  forgers,  who 
on  the  contrary  had  defied  penal  servitude  for  life. 
False  money  is  more  easily  detected  than  a  spurious 
note.i — Money  dealers  and  dealers  in  precious  stones 
have  done  more  than  any  punishment  to  check  the 
crime  of  usury,  as  was  shown  in  the  case  of  Spain, 
after  her  American  conquests ;  whereas  mediaeval 
punishments  never  prevented  the  recrudescence  of 
usury  in  one  form  or  another.  Popular  and  Agri- 
cultural Credit  Banks,  which  are  practically  within 
the  reach  of  all,  are  more  efficacious  against  usury  in 
our  own  days  than  the  special  repressive  laws  enacted 
once  more  in  Germany  and  Austria,  under  the  influ- 
ence of  the  old  illusion. — With  the  diminution  ot 
interest  on  the  public  funds  the  stream  of  capital 
has  been  diverted  into  commerce,  manufactures,  and 
agriculture,   thus   warding   off  stagnation,   with   the 

•  Coiners  and  forgers  of  notes  constitute  "09  per  cent,  of  the  total  of 
condemned  persons  in  France,  and  "04  per  cent,  in  Belgium  ;  but  they 
reach  '4  per  cent,  in  Italy,  on  account  of  the  greater  circulation  of  bank- 
notes. 


THE  DATA    OF   CRIMINAL   STATISTICS.  123 

bankruptcies,  forgeries,  frauds,  &c,,  which  result  there- 
from.— The  adjustment  of  salaries  to  the  needs  of 
public  officials,  and  to  general  economic  conditions, 
stems  the  tide  of  corruption  and  embezzlement,  which 
were  partly  due  to  their  concealed  poverty. — Limited 
hours  of  duty  for  the  responsible  services  on  which 
the  safety  of  the  public  depends,  as  for  instance  in 
railway  stations,  are  far  more  serviceable  in  preventing 
accidents  than  the  useless  punishment  of  those  who 
are  guilty  of  manslaughter. — High-roads,  railways, 
and  tramways  disperse  predatory  bands  in  rural 
districts,  just  as  wide  streets  and  large  and  airy 
dwellings,  with  public  lighting  and  the  destruction 
of  slums,  prevent  robbery  with  violence,  conceal- 
ment of  stolen  goods,  and  indecent  assaults. — Inspec- 
tion of  workshops  and  shorter  hours  for  children's 
labour,  with  their  superintendence  of  married  women, 
may  be  a  check  on  indecent  assaults,  which  penal 
servitude  does  not  prevent.  —  Cheap  workmen's 
dwellings,  and  general  sanitary  measures  for  houses 
both  in  urban  and  rural  districts,  care  being  taken 
not  to  crowd  them  with  poor  families,  tend  to 
physical  health,  as  well  as  to  prevent  many  forms 
of  immorality. — Co-operative  and  mutual  societies, 
provident  societies  and  insurance  against  old  age, 
funds  for  sick  and  infirm  workmen,  employers' 
liability  for  accidents  during  work,  from  machinery 
or  otherwise  ;  popular  savings'  banks,  charity 
organisation  societies  and  the  like,  obviate  a  large 
number  of  offences  against  property  and  the  person 
much  better  than  a  penal  code. — I  have  maintained 
in  the  Italian  Parliament  that  the  reform  of  religious 


124  CRIMINAL   SOCIOLOGY. 

charities,  which  in  Italy  represent  funds  to  the  amount 
of  two  milliards,  might  lead  to  the  prevention  of  crime. 
— Measures  for  the  discouragement  of  mendicity 
and  vagrancy,  above  all  agricultural  colonies,  as  in 
Holland,  Belgium,  Germany,  and  Austria,  would 
be  the  best  penal  substitute  for  the  very  frequent 
offences  committed  by  vagabonds.  Thus  it  may  be 
concluded  that  a  prudent  social  legislation,  not  stop- 
ping short  at  mere  superficial  and  perfunctory  reforms, 
might  constitute  a  genuine  code  of  penal  substitutes, 
which  could  be  set  against  the  mass  of  criminal  im- 
pulses engendered  by  the  wretched  conditions  of  the 
most  numerous  classes  of  society. 

II.  /n  the  Political  Sphere. — For  the  prevention 
of  political  crime,  such  as  assassination,  rebellion, 
conspiracies,  civil  war,  arbitrary  repression  and  pre- 
vention by  the  police  are  powerless ;  there  is  no 
other  means  than  harmony  between  the  Government 
and  the  national  aspirations.  Italy  has  been  a  con- 
spicuous example  of  this,  for  under  the  rule  of  the 
foreigner,  neither  the  scaffold  nor  the  galleys  could 
hinder  political  outrages,  which  have  disappeared 
with  national  independence.  So  with  Ireland  and 
Russia.  Germany,  which  believed  that  it  could  stamp 
out  socialism  by  exceptional  penal  laws,  discovered 
its  mistake. — For  so-called  press  offences  (which  are 
either  ordinary  offences  committed  by  the  aid  of  the 
press,  or  are  not  offences  at  all),  nothing  but  freedom 
of  opinion  can  render  attacks  and  provocations  of 
a  political  type  less  frequent. — Respect  for  the  law 
spreads  through  a  nation  by  the  example  on  the  part 
of  the  governing  classes  and  authorities  of  constant 


THE   DATA   OF  CRIMINAL   STATISTICS.         125 

respect  for  the  rights  of  individuals  and  associations, 
far  better  than  by  policemen  and  prisons. — Electoral 
reform  adapted  to  the  condition  of  a  country  is  the 
only  remedy  against  electoral  offences. — Similarly,  in 
addition  to  the  economic  reforms  already  indicated, 
political  and  parliamentary  reforms  are  much  more 
serviceable  than  the  penal  code  in  preventing  many 
offences  of  a  social  and  political  type,  provided  that 
a  more  real  harmony  has  been  established  between 
a  country  and  its  lawful  representation,  and  that  the 
latter  is  freed  from  the  occasions  and  the  forms  which 
lead  to  its  abuse,  by  removing  technical  questions 
from  injurious  political  influences,  and  giving  the 
people  a  more  direct  authority  over  public  affairs, 
including  the  referendum. — Finally,  that  great  mass 
of  crimes,  isolated  or  epidemic,  evolved  by  unsatisfied 
needs  and  the  neglect  of  separate  divisions  of  a 
country,  which  differ  in  climate,  race,  traditions, 
language,  customs,  and  interests,  would  be  largely 
eliminated  if  we  were  to  dispense  with  the  vague 
folly  of  political  symmetry  and  bureaucratic  centra- 
lisation, and  in  their  place  to  adapt  the  laws  to  the 
special  features  of  the  respective  localities.  National 
unity  in  no  way  depends  upon  legislative  and  ad- 
ministrative uniformity,  which  is  merely  its  unhealthy 
exaggeration.  It  is  indeed  inevitable  that  laws, 
which  in  our  day  merely  represent  a  mode  of 
contact  between  the  most  varied  moral,  social  and 
economic  conditions  of  different  localities,  should 
always  be  inadequate  to  social  needs — too  restricted 
and  slow  in  action  for  one  part  of  the  country,  too 
sweeping  and  premature  for  another  part,  just  as  the 

lO 


126  CRIMINAL  SOCIOLOGY. 

average  convict's  garb  is  too  long  for  those  who  are 
short,  and  too  short  for  those  who  are  tall.  Adminis- 
trative federation  with  political  unity  (e  phirihus 
unum)  would  furnish  us  with  an  aggregate  of  penal 
substitutes,  restoring  to  each  part  of  the  social 
organism  that  freedom  of  movement  and  develop- 
ment which  is  a  universal  law  of  biology  and 
sociology — for  an  organism  is  but  a  federation  too 
lightly  appreciated  by  the  advocates  of  an  artificial 
uniformity,  such  as  ends  by  conflicting  with  unity 
itself. 

III.  In  the  Scientific  Sphere. — The  development  of 
science,  which  creates  fresh  instruments  of  crime, 
such  as  fire-arms,  the  press,  photography,  litho- 
graphy, new  poisons,  dynamite,  electricity,  hypno- 
tism, and  so  forth,  sooner  or  later  provides  the 
antidote  also,  which  is  more  efficacious  than  penal 
repression. — The  |Dress,  anthropometric  photography 
of  prisoners,  telegraphy,  railways,  are  powerful 
auxiliaries  against  crime. — Dissection  and  the  pro- 
gress of  toxicology  have  decreased  the  number 
of  poisoning  cases ;  and  experience  has  already 
proved  that  "  Marsh's  preparation "  has  rendered 
poisoning  by  arsenic,  once  so  common,  com- 
paratively rare. — A  similar  process  has  recently 
been  suggested  as  a  means  of  detection  in  cases  of 
forgery,  for  when  documents  are  exposed  to  iodine 
vapour,  effaced  or  altered  writing  is  restored. — 
Women  doctors  will  diminish  the  opportunities  of 
immorality. — The  free  expression  of  opinion  will 
do  more  to  prevent  its  possible  dangers  than  trials 
of  a   more   or  less  scandalous  kind. — Piracy,  which 


THE  DATA    OF  CRIMINAL   STATISTICS.         I27 

was  not  extirpated  by  punishments  which  are  now 
obsolete,  is  disappearing  under  the  effects  of  steam 
navigation. — The  spread  of  Malthusian  ideas  prevents 
abortion  and  infanticides.^ — Systematic  bookkeeping, 
by  its  clearness  and  simplicity,  obviates  many  frauds 
and  embezzlements,  which  were  encouraged  by  the 
old  complicated  methods. — Cheques,  by  avoiding 
the  necessity  of  frequent  conveyance  of  money,  do 
more  to  prevent  theft  than  punishments  can  do. — 
The  credentials  given  by  some  banks  to  their 
clerks,  whose  duty  it  is  to  witness  the  signature  of 
the  actual  debtor,  prevent  the  falsification  of  bills. 
— Certain  bankers  have  adopted  the  practice  of 
taking  an  instantaneous  photograph  of  every  one 
presenting  cheques  for  large  amounts. — Safes,  bolts, 
and  alarm-bells,  are  a  great  security  against  thieves. 

*  No  doubt  there  may  be  a  difiFerence  of  opinion  on  this  subject  in 
France,  where  public  opinion  is  too  much  exercised  over  the  problem 
of  depopulation.  I  agree  with  M.  Varigny  ("La  Theorie  du  Nombre," 
Revue  des  Deux  Mondes,  Dec.  15,  1890)  that  the  population  of  a 
country  is  not  the  sole,  or  even  the  principal  consideration.  Apart 
from  physical  characteristics  (race),  intellectual  and  moral  qualities, 
and  the  productiveness  of  the  soil,  on  which  M.  Varigny  dwells,  we 
must  take  into  account,  as  it  seems  to  me,  the  unquestionable  law  by 
virtue  of  which  the  struggle  for  existence,  amongst  individuals  as 
amongst  nations,  becomes  gradually  less  vehement  and  direct.  War, 
which  is  an  everyday  matter  with  savages,  grows  constantly  more  rare 
and  difficult.  The  varying  social  and  international  conscience  of 
civilised  humanity  is  not  to  be  neglected,  and  it  must  be  reckoned 
with  as  a  positive  factor  in  considering  the  destiny  of  nations.  Men 
continue  to  speak  of  the  perils  of  war  (in  which  numbers  stand  for 
a  great  deal,  but  are  not  the  exclusive  element)  as  though  the  social 
conscience  of  our  own  day  were  still  the  same  as  that  of  the  Middle 
Ages.  In  several  respects,  on  the  other  hand,  the  thinner  population 
of  France  is  one  cause  of  its  wealth,  and  therefore  of  its  power. 
Germany  has  a  more  numerous,  but  also  a  poorer  population.  And 
I  do  not  believe  that  the  actual  power  of  nations,  on  which  their  future 
depends,  consists  in  loading  a  people  with  arms  after  enfeebling  it  by 
military  expenditure,  which  from  the  year  1880  bps  indicated  a  distinct 
epidemic  mania  on  the  continent  of  Europe. 


128  CRIMINAL    SOCIOLOGY, 

— As  a  preventive  of  murder  in  railway  carriages, 
it  has  been  found  that  alarm  signals  and  methods 
of  securing  the  carriage-doors  from  the  inside,  are 
more  effectual  than  penal  codes. 

IV.  7n  the  Legislative  and  Administrative  Sphere. 
— Wise  testamentary  legislation  prevents  murders 
through  the  impatient  greed  of  next-of-kin,  as 
in  France  during  a  former  age,  with  what  was 
known  as  "  succession  powder." — A  law  to  facilitate 
the  securing  of  paternal  assent  for  the  marriage 
of  children  (as  suggested  by  Herschel  in  his 
"  Theory  of  Probabilities  ")  in  countries  which  require 
the  assent  of  both  parents,  and  for  affiliation  and 
breach  of  promise  of  marriage,  with  provision  for 
children  born  out  of  wedlock,  are  excellent  as 
against  concubinage,  infanticide,  abortion,  exposure 
of  infants,  indecent  assaults,  and  murders  by 
women  abandoned  after  seduction.  On  this  head 
Bentham  said  that  concubinage  regulated  by  civil 
laws  would  be  less  mischievous  than  that  which  the 
law  does  not  recognise  but  cannot  prevent. — Cheap 
and  easy  law  is  a  preventive  of  crimes  and  offences 
against  public  order,  the  person  and  property,  as 
I  have  already  said. — The  ancient  Italian  institution 
of  Advocate  of  the  Poor,  if  substituted  for  the  present 
illusory  assistance  by  the  courts,  would  prevent  many 
acts  of  revenge.  So  also  would  a  strict  and  speedy 
indemnity  for  the  victims  of  other  men's  crimes, 
intrusted  to  a  public  minister  when  the  injured 
person  is  not  able  to  resort  to  the  law  ;  for  as  I  have 
maintained,  with  the  approval  of  sundry  criminal 
sociologists,  civil  responsibility  for  crime  ought  to  be 


THE  DATA   OF  CRIMINAL   STATISTICS.         129 

as  much  a  social  obligation  as  penal  responsibility, 
and  not  a  mere  private  concern. — Simplification  of 
the  law  would  prevent  a  large  number  of  frauds, 
contraventions,  &c.,  for,  apart  from  the  metaphysical 
and  ironical  assertion  that  ignorance  of  the  law 
excuses  no  man,  it  is  certain  that  our  forest  of 
codes,  laws,  decrees,  regulations  and  so  forth,  leads 
to  endless  misapprehensions  and  mistakes,  and  there- 
fore to  contraventions  and  offences. — Commercial 
laws  on  the  civil  responsibility  of  directors,  on  bank- 
ruptcy proceedings  and  the  registration  of  share- 
holders, on  bankrupts'  discharges,  on  industrial  and 
other  exchanges,  would  do  more  than  penal  servitude 
to  prevent  fraudulent  bankruptcy. — Courts  of  honour, 
recognised  and  regulated  by  law,  would  obviate  duels 
without  having  recourse  to  more  or  less  serious 
punishments. — A  well  organised  system  of  con- 
veyancing checks  forgery  and  fraud,  just  as  regis- 
tration offices  have  almost  abolished  the  palming 
and  repudiation  of  children,  which  were  so  common 
in  mediaeval  times.  Deputy  Michelin,  in  order  to 
discourage  bigamy,  proposed  in  1886  to  institute  in 
the  registers  of  births  for  every  commune  a  special 
column  for  the  civil  standing  of  each  individual,  so 
that  any  one  who  contemplated  marriage  would  have 
to  produce  a  certificate  from  this  register,  and  thus 
would  be  unable  to  conceal  a  previous  marriage 
which  had  not  been  dissolved  by  death  or  divorce. — 
The  form  of  indictment  by  word  of  mouth  in  penal 
procedure  has  prevented  many  calumnies  and  false 
charges. — Foundling  and  orphan  homes,  or,  still 
better,    some  less   old-fashioned   substitute,   such  as 


130  CRIMINAL   SOCIOLOGY. 

lying-in  hospitals  and  home  attendance  for  young 
mothers,  might  do  much  to  prevent  infanticide  and 
abortion,  which  are  not  checked  by  the  severest 
punishment. — Prisoners'  aid  societies,  especially  for 
the  young,  might  be  useful  as  penal  substitutes, 
although  much  less  so  than  is  generally  alleged, 
with  plenty  of  eloquence  and  little  practical  work. 
There  is  always  this  strong  objection  to  them,  that 
we  ought  to  succour  workmen  who  continue  honest 
in  spite  of  their  wretchedness  before  those  who  have 
been  in  prison  ;  and  again,  in  place  of  bestowing 
patronage  on  released  prisoners  without  distinction, 
many  of  whom  are  incorrigible,  we  ought  to  select 
the  occasional  criminals  and  criminals  of  passion, 
who  alone  are  capable  of  amendment ;  and  assisting 
them  we  should  avoid  anything  like  police  formalities. 
As  a  matter  of  fact  it  appears  that,  even  in  England, 
where  these  societies  are  most  active,  their  inter- 
vention, like  all  direct  charity,  is  too  far  below  the 
needs  of  those  for  whom  provision  is  necessary. 
/  V.  In  the  Sphere  of  Education. — It  has  been  proved 
that  mere  book  education,  whilst  it  is  useful  in  render- 
ing certain  gross  frauds  more  difficult,  in  extending  a 
knowledge  of  the  laws,  and  above  all  in  diminishing 
improvidence,  so  characteristic  of  the  occasional 
criminal,  is  far  from  being  the  panacea  of  crime 
which  people  imagined  when  they  found  in  the 
criminal  statistics  a  large  proportion  of  illiterate 
prisoners.  It  must  also  be  said  that  schools  which 
are  not  closely  inspected  are  frequently  hotbeds 
of  immorality.  It  is  necessary,  therefore,  to  rely 
on    the    influence    of    a    wider    education,    limited 


THE  DATA   OF  CRIMINAL  STATISTICS.         I31 

though  this  may  be  in  its  turn.  I  do  not  mean  a 
mechanical  instruction  in  moral  maxims,  appealing  to 
the  intelligence  without  reaching  the  feelings,  but 
rather  of  the  examples  afforded  by  every  kind  of 
social  institution,  by  the  government  and  the  press, 
by  the  school  of  the  stage  and  of  public  entertain- 
ments.— It  would  be  well,  however,  to  abolish  certain 
vulgar  and  sensual  entertainments,  and  to  substitute 
for  them  wholesome  amusements  and  exercises,  public 
baths,  properly  superintended,  and  so  built  as  to 
render  private  meetings  impossible,  cheap  theatres, 
and  so  forth.  Thus  the  prohibition  of  cruel  spectacles, 
and  the  suppression  of  gambling  houses,  are  excel- 
lent penal  substitutes. — The  experimental  method  in 
the  teaching  of  children,  which  applies  the  laws  of 
physio-psychology,  according  to  the  physical  and 
moral  type  of  each  pupil,  and  by  giving  him  less 
of  archaeology,  and  more  knowledge  serviceable  in 
actual  life,  by  the  mental  discipline  of  the  natural 
sciences,  which  alone  can  develop  in  him  a  sense  of 
the  actual,  such  as  our  classical  schools  only  enfeeble, 
would  adapt  men  better  for  the  struggle  of  existence, 
whilst  diminishing  the  number  of  those  left  without 
occupation,  who  are  the  candidates  of  crime. — Many 
ot  the  causes  of  crime  would  be  nipped  in  the  bud 
by  checking  degeneration  through  physical  education 
of  the  young,  as  well  as  by  preventing  demoralisation 
by  means  of  the  education  of  abandoned  children,  at 
such  institutions  as  the  workhouse,  ragged  and  indiis- 
trial  schools,  so  well  developed  in  England — or,  still 
better,  by  the  boarding  out  of  children,  so  as  to  avoid 
over-crowdins. — One  class  of  inducements  to  crime 


132  CRIMINAL   SOCIOLOGY. 

would  be  eliminated  by  restrictions  imposed  on 
scandalous  publications  which  concern  themselves 
exclusively  with  crime,  having  no  other  object  than 
to  trade  upon  the  most  brutal  passions,  and  which  are 
allowed  to  exist  under  an  abstract  conception  of 
liberty,  save  that  the  responsible  conductors  are 
punished  when  the  evil  has  been  done. — Similarly 
there  ought  to  be  some  restriction  upon  the  right 
of  admission  to  police-courts  and  assizes,  where 
our  women  hustle  each  other  as  the  Roman  women 
of  the  decline  scrambled  to  be  present  at  the  imperial 
circus-shows,  and  where  our  young  men  and  our 
hardened  criminals  receive  lessons  in  the  art  of 
committing  crin.es  with  greater  smartness  and  pre- 
caution. 

The  instances  which  I  have  given,  and  which  might 
be  multiplied  into  a  preventive  code  as  long  as  the 
penal  code,  prove  to  demonstration  how  large  a  part 
is  played  by  social  factors  in  the  genesis  of  crime, 
and  especially  of  occasional  crime.  But  they  prove 
still  more  clearly  that  the  legislator,  by  modifying 
these  causes,  can  influence  the  development  of  crime 
within  limits  imposed  by  the  competition  of  other 
anthropological  and  physical  factors.  Quetelet  was 
right,  therefore,  when  he  said  in  this  connection, 
"  Since  the  crimes  committed  every  year  seem  to  be 
the  necessity  of  our  social  organisation,  and  their 
number  cannot  be  diminished  if  the  causes  to  which 
they  are  due  cannot  be  modified  in  a  preventive  sense, 
it  behoves  legislators  to  recognise  these  causes,  and  to 
eliminate  them  as  far  as  possible.     They  must  frame 


THE  DATA    OF  CRIMINAL  STATISTICS.  1 33 

the  budget  of  crime  as  they  frame  that  of  the  national 
revenue  and  expenditure." 

It  must  nevertheless  be  borne  in  mind  that  all  this 
will  have  to  be  done  apart  from  the  penal  code  ;  for 
it  is  true,  however  strange,  that  history,  statistics,  and 
direct  observation  of  criminal  phenomena  prove  that 
penal  laws  are  the  least  effectual  in  preventing  crime, 
whilst  the  strongest  influence  is  exercised  by  laws  of 
the  economic,  political,  and  administrative  order. 

In  conclusion,  the  legislator  should  be  convinced  by 
the  teaching  of  scientific  observation  that  social  re- 
forms are  much  more  serviceable  than  the  penal  code 
in  preventing  an  inundation  of  crime.  The  legisla- 
tor, on  whom  it  devolves  to  preserve  the  health  of  the 
social  organism,  ought  to  imitate  the  physician,  who 
preserves  the  health  of  the  individual  by  the  aid  of 
experimental  science,  resorts  as  little  as  possible,  and 
only  in  extreme  cases,  to  the  more  forcible  methods 
of  surgery,  has  a  limited  confidence  in  the  problema- 
tic efficiency  of  medicines,  and  relies  rather  on  the 
trustworthy  processes  of  hygienic  science.  Only  then 
will  he  be  able  to  avoid  the  dangerous  fallacy,  ever 
popular  and  full  of  life,  which  Signor  Vacca,  Keeper 
of  the  Seals,  expressed  in  these  words  :  "  The  less  we 
have  recourse  to  preventive  measures,  the  more  severe 
ought  our  repression  to  be."  Which  is  like  saying 
that  when  a  convalescent  has  no  soup  to  pick  up  his 
strength,  we  ought  to  administer  a  drastic  drug. 

It  is  precisely  on  this  point  that  the  practical,  rather 
than  the  merely  theoretical,  differences  between  the 
positive  and  the  classical  schools  of  penal  law  be- 
come evident.     Whilst  we  believe  that  social  reforms 


134  CRIMINAL   SOCIOLOGY. 

and  other  measures  suggested  by  a  study  of  the 
natural  factors  of  crime  are  most  effective  in  pre- 
venting crime,  legislators,  employing  the  a  priori 
method  of  the  classical  school,  have  for  many  years 
past  been  discussing  proposed  penal  codes,  whilst 
they  permit  criminality  to  make  steady  progress.  It 
is  another  case  of  Duni  Romce  consulitur,  Saguntutn 
expugnatur. 

And  when  the  legislators  find  their  Byzantine  dis- 
cussions on  the  "juridical  entities  "  of  crime  and 
punishment  broken  in  upon  by  a  recrudescence  of 
crime,  or  by  a  serious  manifestation  of  some  pheno- 
menon of  social  pathology,  then  all  they  can  do  in  their 
perplexity  and  astonishment  is  to  pass  some  new 
repressive  law,  which  for  a  moment  stills  the  outcry  of 
public  opinion,  and  remits  the  matter  once  more  from 
the  acute  to  the  chronic  phase. 

The  positive  theory  of  penal  substitutes,  apart  from 
any  particular  example,  aims  precisely  at  furnishing 
a  mental  discipline  for  legislators,  and  bringing  home 
to  them  the  duty  of  constant  reinforcements  of  social 
prevention,  no  matter  how  difficult  it  may  be,  before 
the  evil  comes  to  a  head,  and  forces  them  too  late  to  a 
course  of  repression  which  is  as  easy  as  it  is  fallacious. 
No  doubt  it  is  vexatious  and  difficult,  even  in  private 
life,  to  be  perpetually  living  up  to  rules  of  health  ; 
•and  it  is  easier,  if  more  dangerous,  to  forget  them, 
and  to  fly,  when  the  mischief  declares  itself,  to  drugs 
which  are  too  frequently  deceptive  ;  but  it  is  just  the 
want  of  forethought,  both  public  and  private,  which  it 
is  so  important  to  overcome.  And  as  hygienic  science 
was  not  possible  as  a  theory  or  as  a  practice  until  after 


THE   DATA   OF  CRIMINAL  STATISTICS.         T35 

the  experimental  observations  and  physio-pathology 
on  the  causes  of  disease,  especially  of  epidemic  and 
infectious  diseases,  together  with  the  discoveries  of  M. 
Pasteur,  who  created  bacteriology;  so  social  hygiene  as 
against  crime  was  only  possible  as  a  theory,  and  will 
not  be  so  as  a  practice,  till  the  diffusion  of  the  facts 
of  biology  and  criminal  sociology  relating  to  the 
natural  causes  of  crime,  especially  of  occasional  crime. 

The  great  thing  is  to  be  convinced  that,  for  social 
defence  against  crime,  as  for  the  moral  elevation  of 
the  masses  of  men,  the  least  measure  of  progress  with 
reforms  which  prevent  crime  is  a  hundred  times  more 
useful  and  profitable  than  the  publication  of  an  entire 
penal  code. 

When  a  minister  introduces  a  law,  for  instance,  on 
railways,  customs  duties,  wages,  taxation,  companies, 
civil  or  commercial  institutions,  there  are  few  who 
think  of  the  effect  which  these  laws  will  have  on  the 
criminality  of  the  nation,  for  it  is  imagined  that  suffi- 
cient has  been  done  in  this  respect  by  means  of  re- 
forms in  the  penal  code.  In  the  social  organism,  on 
the  other  hand,  as  in  individuals,  there  is  an  inevitable 
solidarity,  though  frequently  concealed,  between  the 
most  distant  and  different  parts. 

It  is  just  from  these  laws  of  social  physiology  and 
pathology  that  we  derive  the  notion  of  penal  substi- 
tutes, which  at  the  same  time  we  must  not  dissociate 
from  the  law  of  criminal  saturation.  For  if  it  is  true 
that  by  modifying  the  social  factors  we  can  produce 
an  effect  on  the  development  of  crime,  and  especially 
of  occasional  crime,  it  is  also  true,  unfortunately,  that 
in  every  social  environment  there  is  always  a  minimum 


136  CRIMINAL   SOCIOLOGY. 

of  inevitable  criminality,  due  to  the  influence  of  the 
other  factors,  biological  and  physical.  Otherwise  we 
might  easily  fall  into  the  opposite  and  equally  fal- 
lacious illusion  of  thinking  that  we  could  absolutely 
suppress  all  crimes  and  offences.  For  it  is  easy  to 
reach  on  one  side  the  empiric  idea  of  penal  terrorism, 
and  on  the  other  side  the  hasty  and  one-sided  conclu- 
sion that  to  abolish  some  particular  institution  would 
get  rid  of  its  abuses.  The  fact  is  that  we  must  consider 
before  all  things  whether  it  is  not  a  less  evil  to  put  up 
with  institutions,  however  inconvenient,  and  to  reform 
them,  than  to  forfeit  all  the  advantages  which  they 
afford.  And  it  must  above  all  be  borne  in  mind  that 
as  society  cannot  exist  without  law,  so  law  cannot 
exist  without  offences  against  the  law.  The  struggle 
for  existence  may  be  fought  by  honest  or  economic 
activity,  or  by  dishonest  and  criminal  activity.  The 
whole  problem  is  to  reduce  to  a  minimum  the  more 
or  less  criminal  rufflings  and  shocks,  yet  without  dis- 
turbing "social  order,"  amidst  the  indifference  or 
servility  of  a  spiritless  people,  or  resorting  to  police- 
men and  prisons  on  every  slight  occasion. 

These  general  observations  on  penal  substitutes  in 
connection  with  the  law  of  criminal  saturation  are  a 
sufficient  answer  to  the  two  chief  objections  raised 
even  by  such  as  agree  with  me  in  theory. 

It  has  been  urged,  in  effect,  that  some  of  the  penal 
substitutes  which  I  have  enumerated  have  already 
been  applied,  without  preventing  crime ;  and  again, 
that  there  were  some  institutions  which  it  would  be 
absurd  to  abolish  because  the  removal  of  a  prohibition 
would  also  remove  the  contravention. 


THE  DATA   OF  CRIMINAL  STATISTICS.         I37 

The  aim  of  penal  substitutes  is  not  to  render  all 
crimes  and  offences  impossible,  but  only  to  reduce 
them  to  the  least  possible  number  in  any  particular 
physical  and  social  environment.  There  are  crimes 
of  piracy  to  this  day,  but  the  use  of  steam  in  naviga- 
tion has,  none  the  less,  been  more  effectual  than  all 
the  penal  codes.  Murders  still  occur,  though  very 
rarely,  on  the  railways  ;  but  it  is  none  the  less  true 
that  the  substitution  of  the  railways  and  tramways 
for  the  old  diligences  and  stagecoaches  has  decimated 
highway  robberies,  with  or  without  murder.  Divorce 
does  not  eliminate  wife-murder  as  a  consequence  of 
adultery,  but  it  diminishes  its  frequency.  Similarly, 
after  the  protection  which  is  afforded  to  abandoned 
children,  we  shall  not  be  able  to  close  the  tribunals 
through  the  absence  of  crimes  and  offences,  but  it  is 
certain  that  the  supply  of  these  will  be  notably 
diminished. 

As  for  the  second  objection,  I  was  careful  to  say,  in 
regard  to  existing  institutions,  that  we  must  naturally 
consider  whether  the  evil  arising  from  violating  them 
or  that  which  would  be  due  to  their  suppression 
is  the  greater.  But  my  main  contention  is  that  by 
reforming  these  institutions  we  can  do  more  to  pre- 
vent crime  than  by  leaving  them  as  they  happen  to 
be,  or  at  most  granting  them  the  fallacious  protection 
of  one  or  two  articles  in  the  penal  code. 

I  will  myself  add  a  criticism  of  the  theory  of  penal 
substitutes,  and  it  is  that  they  are  difficult  of  applica- 
tion. We  have  only  to  think  of  the  immense  force  of 
inertia  in  the  habits,  traditions  and  interests  which 
have  to  be  overcome  before  we  can  secure  the  appli- 

STATE  NORllALSQiOUL, 


138  CRIMINAL   SOCIOLOGY. 

cation,  not  of  all,  but  of  any  one  of  the  penal  substi- 
tutes which  I  have  enumerated.  And  some  of  these 
are  not  siniple,  or  based  on  a  single  principle,  but 
comprise  an  assemblage  of  co-ordinated  refoims,  like 
the  prevention  of  drunkenness,  the  protection  of 
abandoned  children,  the  accessibility  of  justice,  and 
so  forth. 

But  if  legislators  must  take  into  account  the  actual 
conditions  of  the  people,  and  adapt  themselves  to 
conditions  of  time  and  place,  it  is  the  business  of 
science  to  indicate  the  goal,  however  distant  and  diffi- 
cult to  reach.  The  first  condition  of  attaining  legis- 
lative and  social  reforms  is  that  they  should  impress 
themselves  beforehand  on  the  public  conscience  ;  and 
this  is  not  possible  if  science,  in  spite  of  transitory 
difficulties,  does  not  resolutely  open  up  the  road 
which  has  to  be  travelled;  without  any  compromise 
with  eclecticism,  which  means  for  science  what  hybrid- 
ism means  for  organic  life. 

Two  other  objections  may  be  made  on  the  ground 
of  principle  to  what  has  been  said.  The  first  is  that 
this  system  of  penal  substitutes  is  only  the  familiar 
process  of  prevention  of  crime.  The  second  is  that 
the  criminal  expert  need  not  concern  himself  with  it, 
since  prevention  is  only  a  question  of  good  govern- 
ment, which  has  nothing  to  do  with  the  study  of 
crimes  and  punishments. 

My  answer  to  the  second  objection  is  that  the 
importance  of  taking  measures  to  prevent  crime  has 
certainly  been  dwelt  upon,  especially  from  the  time 
of  Montesquieu  and  Beccaria,  but  it  has  been  only  by 


THE   DATA    OF  CRIMINAL   STATISTICS.  I39 

way  of  platonic  and  isolated  declaration,  with  no  such 
systematic  development  as  might  have  given  them 
practical  application,  based  on  experimental  observa- 
tions. Moreover,  this  prevention  has  always  been 
held  as  subsidiary  to  repression,  whereas  we  have 
arrived  at  the  positive  conclusion  that  prevention, 
instead  of  being  a  mere  secondary  aid,  should 
henceforth  become  the  primary  defensive  function  of 
"society,  since  repression  has  but  an  infinitesimal 
influence  upon  criminality. 

Furthermore,  it  is  important  to  observe  the  pro- 
found distinction  between  ordinary  prevention  and 
penal  substitutes  ;  or  in  other  words,  between  preven- 
tion by  police  and  prevention  by  society.  The  former 
merely  seeks  to  prevent  crime  when  its  germ  is  ah-eady 
developed  and  active,  and  it  nearly  always  employs 
methods  of  direct  coercion,  which,  being  themselves 
repressive  in  their  character,  are  often  inefficacious, 
even  if  they  do  not  provoke  additional  offences. 
Social  prevention,  on  the  other  hand,  begins  with  the 
original  sources  of  crime,  attacking  its  biological, 
physical,  and  social  factors,  by  methods  which  are 
wholly  indirect,  and  which  rest  upon  the  free  play  of 
psychological  and  sociological  laws. 

Science,  as  well  as  the  making  of  laws,  has  hitherto 
been  too  much  influenced  by  a  preference  for  repres- 
sion, or  at  least  for  administrative  police  prevention. 
•'  There  have  been  authoritative  works  and  learned 
folios,"  says  Ellero,  "  which  dealt  not  only  with 
punishment,  but  also  with  torture  ;  there  has  been 
none  dealing  with  the  provision  of  means  for  providing 
an  alternative  to  punishment" 


140  CRIMINAL   SOCIOLOGY. 

After  the  general  observations  of  Montesquieu, 
Filangieri,  Beccaria,  and  more  recently  Tissot,  on  the 
influence  of  religion,  climate,  soil,  and  the  form  of 
government,  upon  the  penal  system  rather  than  the  pre- 
vention of  crime,  the  authors  who  studied  prevention 
with  wider  and  more  systematic  views  (excluding  the 
criminal  sociologists  who  have  more  or  less  taken  the 
positive  point  of  view),  are  Bentham,  Romagnosi, 
Barbacovi,  Carmignani,  Ellero,  Lombrosp,  and  a  few 
Englishmen,  who,  without  making  much  of  the  theory, 
have  made  many  practical  suggestions  of  preventive 
reform.  But  even  these  writers  either  confine  them- 
selves to  general  synthetic  considerations,  like  Romag- 
nosi and  Carmignani,  or  else,  entering  the  domain  of 
facts,  and  even  accepting  the  idea  of  social  prevention, 
have  made  too  little  of  those  physio-psychological 
laws  as  the  natural  factors  of  crime,  which  alone  can 
furnish  a  method  of  regulating  human  activity.  And, 
when  all  is  said  and  done,  they  have  clung  to  punish- 
ment as  the  chief  method  of  prevention. 

Hence  their  teaching  and  their  propositions  have 
had  no  weight  with  legislators,  for  these  latter  had 
not  been  convinced,  as  only  the  criminal  sociologist 
could  convince  them,  that  punishments  are  far  from 
having  the  deterrent  force  commonly  attributed  to 
them,  and  that  crime  is  not  the  outcome  of  free  will, 
but  rather  a  natural  phenomenon  which  can  only 
disappear  or  diminish  when  its  natural  factors  are 
eliminated. 

The  legislators  for  their  part  have  not  only  neglected 
the  definite  teaching  of  these  authors  with  more  than 
ordinary  insight,  but  they  have  also  enacted  what  are 


THE  DATA   OF  CRIMINAL  STATISTICS.         I41 

really  penal  substitutes  in  a  clumsy  and  unscientific 
manner. 

We  have  thus  studied  the  data  of  criminal  statistics 
in  their  theoretical  and  practical  relations  with  criminal 
sociology,  and  come  to  the  conclusion  that,  since 
crime  is  a  natural  phenomenon,  determined  by  factors 
of  three  kinds,  it  answers  on  that  account  to  a  law  of 
criminal  saturation,  whereby  the  physical  and  social 
environment,  aided  by  individual  tendencies,  here- 
ditary or  acquired,  and  by  occasional  impulses,  neces- 
sarily determine  the  extent  of  crime  in  every  age  and 
country,  both  in  quantity  and  quality.  That  is  to  say, 
the  criminality  of  a  nation  is  influenced  in  the  natural 
sphere  by  the  bio-psychical  conditions  of  individuals 
and  their  physical  environment,  and,  in  the  social 
sphere,  by  economic,  political,  administrative  and 
civil  conditions  of  laws,  far  more  than  by  the  penal 
code. 

Nevertheless  the  execution  of  punishment,  though 
it  is  the  less  important  part  of  the  function  of  social 
defence,  which  should  be  carried  out  in  harmony  with 
the  other  functions  of  society,  is  always  the  leist  and 
inevitable  auxiliary. 

And  this  entirely  agrees  with  the  universal  law  of 
evolution,  in  virtue  of  which,  amidst  the  variation  of 
animal  and  social  organisms,  antecedent  forms  are  not 
wholly  eliminated,  but  continue  as  the  basis  of  the 
forms  which  succeed  them.  So  that  if  the  future  evo- 
lution of  the  social  administration  of  defence  against 
crime  is  to  consist  in  the  development  of  the  primitive 
forms  of  direct  physical  coercion  into  the  higher  forms 
of  indirect  psychical  discipline  of  human  activity,  this 


142  CRIMINAL  SOCIOLOGY. 

will  not  imply  that  the  primitive  forms  must  entirely 
disappear,  especially  for  the  gravest  crimes,  which,  in 
the  biological  and  psychological  conditions  of  those 
who  commit  them,  take  us  back  to  the  primitive 
epochs  and  forms  of  individual  and  social  violence. 

I  end  with  a  modification  of  an  old  comparison 
which  has  been  much  abused.  Crime  has  been  com- 
pared to  an  impetuous  torrent  which  ought  to  be 
enclosed  between  the  dykes  of  punishment,  lest 
<;ivilised  society  should  be  submerged.  I  do  not  deny 
that  punishments  are  the  dykes  of  crime,  but  I  assert 
that  they  are  dykes  of  no  great  strength  or  utility. 
All  nations  know  by  sad  and  chronic  experience  that 
their  dykes  cannot  save  them  from  inundations  ;  and 
so  our  statistics  teach  us  that  punishments  have  but 
an  infinitesimal  power  against  the  force  of  criminality, 
when  its  germs  are  fully  developed. 

But  as  we  can  best  protect  ourselves  against  inun- 
dations by  obeying  the  laws  of  hydrostatics  and 
hydrodynamics,  by  timbering  the  banks  near  the 
source  of  the  stream,  and  by  due  rectilineation  or 
excavation  along  its  course  and  near  its  mouth,  so,  in 
order  to  defend  ourselves  against  crimes,  it  is  best  to 
observe  the  laws  of  psychology  and  sociology,  and  to 
avail  ourselves  of  social  substitutes,  which  are  far 
more  efficacious  than  whole  arsenals  of  repressive 
measures. 


CHAPTER  III. 

PRACTICAL  REFORMS. 

The  data  of  criminal  anthropology  and  statistics,  and 
the  positive  theory  of  responsibility  which  flows  from 
them,  although  they  have  been  systematised  only  by 
the  positive  school,  are  nevertheless  too  constantly  in 
evidence  not  to  have  made  their  way  into  courts  and 
parliaments. 

I  have  already  spoken  of  penal  jurisprudence  in  its 
relations  with  criminal  sociology,  and  may  now  cite 
a  few  examples  of  the  more  or  less  direct  and  avowed 
influence  of  the  new  data  on  penal  legislation. 

The  legislators  of  to-day,  vaguely  impressed  by 
statistical  and  biological,  ethnographical  and  anthro- 
pological data,  and  still  imbued  with  the  old  prejudice 
of  social  and  political  artificiality,  were  at  first  hurried 
into  a  regular  mania  for  legislation,  under  which  every 
newly  observed  social  phenomenon  seemed  to  demand 
a  special  law,  regulation,  or  article  in  the  penal  code. 
Then,  as  Spencer  has  said  in  one  of  his  most  brilliant 
essays,  the  citizen  finds  himself  in  an  inextricable 
network  of  laws,  decrees,  regulations  and  codes, 
which  surround  him,  support  him,  fetter  and  bind 
him,  even  before  his  birth  and  after  his  death.     For 

<43 


144  CRIMINAL  SOCIOLOGY, 

those  whom  M.  Bordier  calls  the  gardeners  and  truss- 
makers  of  society,  forgetting  the  natural  character  of 
social  phenomena,  picture  society  as  so  much  paste, 
to  which  the  cook  may  give  any  form  he  pleases, 
whether  pie-crust,  dumpling,  or  tart. 

Hence  we  see  on  all  sides,  side  by  side  with  dogma 
in  the  classical  sciences  of  law,  economy,  and  politics, 
empiricism  in  the  laws  themselves.  And  that  is  why 
the  practical  defects  and  constant  impotence  of  repres- 
sion in  penal  justice  are  the  most  eloquent  argu* 
ments  of  the  experimental  school,  which  extends  and 
strengthens  its  own  theoretical  inductions  by  the 
practical  reforms  which  it  suggests. 

A  first  example  of  the  influence  more  directly 
exercised  by  the  new  ideas  in  penal  legislation  is 
furnished  by  the  proposal  already  realised  in  the 
penal  laws  of  Holland,  Italy,  &c.,  of  two  parallel 
systems  of  punishment  by  detention — one  for  the 
graver  and  more  dangerous  crimes,  and  the  other, 
"  simple  detention,"  or  custodia  honesta  ("  as  a  first- 
class  misdemeanant  "),  for  contraventions,  involuntary 
offences,  and  crimes  not  inspired  by  the  baser 
passions. 

Similarly,  the  enumeration  contained  in  certain 
codes,  as  in  Spain,  and  in  the  old  Mancini  draft 
of  a  penal  code  in  Italy,  of  the  main  aggravating 
and  extenuating  circumstances  common  to  all  crimes 
and  offences,  such  as  the  antecedents  of  the  accused, 
venial  or  inexcusable  passion,  repentance  and  confes- 
sion of  a  crime,  extent  of  injury  or  the  like,  is  only 
an  elementary  and  empiric  form  of  the  biological  and 
psychological  classification  of  criminals. 


PRACTICAL  REFORMS,  I45 

Thus  also  the  foundation  of  asylums  for  the  deten- 
tion of  lunatic  criminals,  in  spite  of  their  being  ac- 
quitted of  moral  responsibility  ;  the  more  and  more 
vigorous,  but  often  too  empirical  measures  against 
the  progressive  increase  of  recidivism  ;  the  proposed 
repressive  measures  as  alternatives  to  short  terms  of 
detention  ;  the  reaction  against  the  exaggerations  of 
cellular  confinement,  which  I  regard  as  one  of  the 
aberrations  of  the  nineteenth  century,  are  all  manifest 
proofs  of  the  more  or  less  avowed  and  logical  influence 
of  the  data  of  criminal  biology  and  sociology  on  con- 
temporary penal  legislation. 

These  practical  reforms,  which,  when  grafted  on 
the  old  trunk  of  the  classical  theories  of  crime  and 
punishment,  are  mere  arbitrary  and  misplaced  ex- 
pedients, really  represent,  when  they  are  logically 
co-ordinated  and  completed,  the  new  system  of  social 
defence  againt  crime,  which  is  based  on  the  scientific 
data  and  inductions  of  the  positive  school,  and  which 
it  is  therefore  necessary  for  us  to  trace  out  from  its 
foundations. 


I. 


In  the  first  place,  whilst  the  positive  theories  largely 
reduce  the  practical  importance  of  the  penal  code,  yet 
they  do  more  to  increase  the  importance  of  the  rules 
of  penal  procedure,  which  are  intended  to  give  prac- 
tical and  daily  effect  to  penal  measures,  for  the 
defence  of  society  against  criminals.  For,  as  I  main- 
tained in  the  Italian  Parliament,  if  the  penal  code  is 
a  code  for  evil-doers,  that  of  penal  procedure  is  a  code 


146  CRIMINAL   SOCIOLOGY. 

for  honest  people,  who  are  placed  on  their  trial  but 
not  yet  found  guilty. 

This  is  all  the  more  true  because,  if  it  is  possible 
to  have  penal  codes  whose  machinery  of  psycho- 
logical coercion  is  planted  on  a  platonic  platform 
of  penitentiary  systems  written  out  fair  in  their 
symmetrical  clauses,  but  still  non-existent,  as  is 
the  case  in  Italy,  this  is  not  possible  in  regard  to 
penal  procedure.  The  regulations  of  the  code  of 
"  instruction "  must  of  necessity  be  carried  out  by 
a  judicial  routine.  The  penal  code  may  remain  a 
dead  letter,  as,  for  instance,  when  it  says  that  punish- 
ment by  detention  is  to  be  inflicted  in  prisons  con- 
structed with  cells  ;  for,  happily,  the  cells  necessary 
in  Italy  for  fifty  or  sixty  thousand  prisoners  (or  in 
France  for  thirty  or  forty  thousand)  are  too  ex- 
pensive to  admit  of  the  observance  of  these  articles 
of  the  penal  code — which  nevertheless  have  cost 
so  many  academic  discussions  as  to  the  best  peni- 
tentiary system  :  "Auburn,"  "Philadelphian,"  "Irish," 
or  "  progressive."  In  the  organisation  of  justice,  on 
the  other  hand,  every  legal  regulation  has  its  im- 
mediate application,  and  therefore  reforms  of  pro- 
cedure produce  immediate  and  visible  results. 

It  may  be  added  that,  if  the  slight  deterrent 
influence  which  it  is  possible  for  punishment  to 
exercise  depends,  with  its  adaptation  to  various 
types  of  criminals,  on  the  certitude  and  prompti- 
tude of  its  application,  the  others  depend  precisely 
and  solely  on  the  organisation  of  the  police,  and 
of  penal  procedure. 

Passing  over  special  and  technical  reforms  which 


PRACTICAL  REFORMS.  I47 

even  the  classical  experts  in  crime  demand  in  the  sys- 
tems of  procedure,  and  often  rather  on  behalf  of  the 
criminals  than  on  behalf  of  society,  we  may  connect  the 
positive  innovations  in  judicial  procedure  with  these 
two  general  principles  : — (i)  the  equal  recognition  of 
the  rights  and  guarantees  of  the  prisoner  to  be 
tried  and  of  the  society  which  tries  him  ;  and  (2)  the 
legal  sentence,  whereof  the  object  is  not  to  define  the 
indeterminable  moral  culpability  of  the  prisoner, 
nor  the  impersonal  applicability  of  an  article  in  the 
penal  code  to  the  crime  under  consideration  ;  but  the 
application  of  the  law  which  is  most  appropriate  to 
the  perpetrator  of  the  crime,  according  to  his  more 
or  less  anti-social  characteristics,  both  physiological 
and  psychological. 

From  Beccaria  onward,  penal  law  developed  by 
reaction  against  the  excessive  and  arbitrary  severity 
of  the  Middle  Ages — a  reaction  which  led  to  a  pro- 
gressive decrease  of  punishments.  Similarly  official 
penal  procedure  in  the  nineteenth  century  has  been, 
and  continues  to  be,  a  reaction  against  the  mediaeval 
abuses  of  the  inquisitorial  system,  in  the  sense  of 
a  progressive  increase  of  individual  guarantees  against 
the  domination  of  society. 

As  we  considered  it  necessary  in  the  interests  of 
social  self-defence,  in  the  case  of  criminal  law,  to 
combat  the  individualist  excesses  of  the  classical 
school,  so  in  regard  to  penal  procedure,  whilst 
admitting  the  irrevocable  guarantees  of  individual 
liberty,  secured  under  the  old  system,  we  think  it 
necessary  to  restore  the  equilibrium  between  indi- 
vidual and  social  rights,  which  has  been  disturbed 


148  CRIMINAL  SOCIOLOGY, 

by  the  many  exaggerations  of  the  classical  theories, 
as  we  will  now  proceed  to  show  by  a  few  examples. 

The  presumption  of  innocence,  and  therewith  the 
more  general  rule,  "in  dubio  pro  reo,"  is  certainly 
based  on  an  actual  truth,  and  is  doubtless  obligatory 
during  the  progress  of  the  trial.  Undetected  criminals 
are  fortunately  a  very  small  minority  as  compared 
with  honest  people;  and  we  must  consequently  regard 
every  man  who  is  placed  on  his  trial  as  innocent  until 
fhe  contrary  has  been  proved. 

But  when  proof  to  the  contrary  is  evident,  as,  for 
instance,  in  the  case  of  a  flagrant  crime,  or  of  confes- 
sion confirmed  by  other  elements  in  the  trial,  it 
seems  fit  that  the  presumption  should  cease  in  view 
of  absolute  fact ;  and  especially  when  we  have  to  do 
with  habitual  criminals. 

Even  the  criminals  of  this  class  whom  I  have  ques- 
tioned recognise  a  presumption  of  the  opposite  kind. 
"They  have  convicted  me,"  said  an  habitual  thief, 
"  because  they  knew  I  might  have  done  it,  without 
any  proof;  and  they  were  in  the  right  You  will 
never  be  convicted,  because  you  never  stole ;  and 
if  we  happen  to  be  innocent  once  in  a  way,  that 
must  be  set  against  the  other  times  when  we  are 
not  discovered."  And  the  ironical  smile  of  several 
of  these  prisoners,  condemned  on  circumstantial 
evidence,  reminded  me  of  a  provision  which  was  once 
proposed  in  the  Italian  penal  code,  under  which  a 
person  surprised  in  the  attempt  to  commit  a  crime, 
If  it  was  not  known  what  precise  form  his  crime  would 
have  taken,  was  to  be  found  guilty  of  a  less  serious 
offence.  This  might  be  good  for  an  occasional  criminal. 


PRACTICAL   REFORMS.  I49 

or  a  criminal  of  passion,  but  would  be  absurd  and 
dangerous  for  habitual  criminals  and  old  offenders. 

The  exaggerations  of  the  presumption  "  in  dubio 
pro  reo "  are  due  to  a  sort  of  mummification  and 
degeneracy  of  the  legal  maxims,  whereby  propo- 
sitions based  upon  observation  and  generalisation 
from  existing  iacts  continue  in  force  and  are 
mechanically  applied  after  the  facts  have  changed 
or  ceased  to  exist. 

What  reason  can  there  be  for  extending  provisional 
freedom,  pending  an  appeal,  to  one  who  has  already 
been  found  guilty  and  liable  to  punishment  for  a 
crime  or  offence,  under  sentence  of  a  court  of  first 
instance  }  To  presume  the  innocence  of  every  one 
during  the  first  trial  is  reasonable ;  but  to  persist  in 
a  presumption  which  has  been  destroyed  by  facts, 
after  a  first  condemnation,  would  be  incomprehensible 
if  it  were  not  a  manifestly  exaggerated  outcome  of 
classical  and  individualist  theories,  which  can  only 
see  a  "  victim  of  authority  "  in  every  accused  person, 
and  in  every  condemned  person  also. 

Another  point  is  that  of  acquittal  in  case  of  an 
equality  of  votes,  especially  where  born  and  habitual 
criminals  are  concerned.  I  think  it  would  be  much 
more  reasonable  to  restore  the  verdict  of  "not  proven," 
which  the  Romans  admitted  under  the  form  of  "  non 
liquet,"  as  an  alternative  to  "  absolvo "  and  "  con- 
demno,"  and  which  may  be  delivered  by  juries  in 
Scotland.  Every  one  who  has  been,  put  on  his  trial 
is  entitled  to  have  his  innocence  declared,  it  it  has 
been  actually  proved.  But  if  the  proofs  remain 
incomplete,  his  only  right  is  not  to  be  condemnedi 


150  CRIMINAL   SOCIOLOGY. 

since  his  culpability  has  not  been  proved.  But  it 
is  not  the  duty  of  society  to  declare  him  absolutely 
innocent,  when  suspicious  circumstances  remain.  In 
this  case  the  only  logical  and  just  verdict  is  one  of 
"  not  proven."  Such  a  verdict  would  obliterate  the 
shadow  of  doubt  which  rests  on  persons  who  have 
been  acquitted,  by  reason  of  the  identical  verdicts 
in  cases  of  proved  innocence  and  inadequacy  of 
proof,  and  on  the  other  hand  it  would  avoid  the 
tendency  to  compromise,  under  which  judges  and 
juries,  in  place  of  acquitting  when  the  proof  is  insuffi- 
cient, sometimes  prefer  to  convict,  but  make  the 
punishment  lighter. 

Another  case  of  exaggeration  in  the  presumption 
of  innocence  is  afforded  by  the  regulations  as  to 
contradictory  or  irregular  verdicts,  which  may  be 
corrected  only  when  there  has  been  a  conviction  ; 
whilst  if  the  error  has  led  to  the  acquittal  of  an 
accused  person,  it  cannot  be  put  right.  The  in- 
fluence of  the  individualist  and  classical  school  is 
here  manifest,  for,  as  M.  Majno  says,  "  the  justice  of 
sentences  rests  as  much  on  just  condemnations  as 
upon  just  acquittals."  If  the  individual  has  a  right 
to  claim  that  he  shall  not  be  condemned  through  the 
mistake  or  ignorance  of  his  judges,  society  also  has 
the  right  to  demand  that  those  whose  acquittal  is 
equally  the  result  of  mistake  or  ignorance  shall  not 
be  allowed  to  go  free. 

On  the  same  ground  of  equilibrium  between  the 
rights  of  the  individual  and  the  rights  of  society, 
which  the  positive  school  aims  at  restoring,  something 
must  be  said  as  to  the  regulation  by  which,  if  the 


PRACTICAL  REFORMS.  I5I 

appeal  is  brought  by  a  condemned  person,  the  punish- 
ment cannot  be  increased.  One  classical  expert  in  an 
official  position  would  not  even  give  the  right  to  appeal 
at  all. 

Now  if  appeal  is  allowed  for  the  purpose  of  correct- 
ing possible  mistakes  on  the  part  of  the  original 
judges,  why  must  we  allow  this  correction  in  mitiga- 
tion, and  not  in  increase  of  punishment?  And  to 
this  practical  assurance  of  the  condemned  person  that 
he  has  nothing  to  fear  from  a  second  trial,  which 
seems  to  have  been  given  to  him  for  the  sole  purpose 
of  encouraging  him  to  abuse  his  power,  since  appeals 
are  too  often  a  mere  dilatory  pretext,  there  is  a  pen- 
dant in  the  right  of  the  public  prosecutor  to  demand 
a  re-hearing,  but  only  "  in  the  interest  of  the  law,  and 
without  prejudice  to  the  person  acquitted." 

A  last  instance  of  the  same  kind  of  protective 
regulation  for  the  protection  of  evil-doers  is  to  be 
found  in  the  new  trials  which  are  permitted  only  in 
cases  where  there  has  been  a  condemnation,  and  that 
on  arbitrary  and  superficial  grounds.  Most  of  the 
classical  commentators  on  procedure  do  not  dream  of 
the  possibility  of  revision  in  the  case  of  acquittals, 
and  yet,  as  Majno  justly  says, "  even  if  he  has  profited 
by  false  witness,  forged  documents,  intimidation  or 
corruption  of  a  judge,  or  any  other  offence,  the 
acquitted  person  calmly  enjoys  his  boast,  and  can 
even  plume  himself  on  his  own  share  in  the  business 
without  fear  of  being  put  on  his  trial  again."  The 
Austiian  and  German  codes  of  procedure  admit 
revision  in  cases  of  acquittal  ;  and  the  positive  rule 
in  this  connection  ought  to  be  that  a  case  should  be 


152  CRIMINAL   SOCIOLOGY, 

re-heard  when  the  sentence  of  condemnation  or 
acquittal  is  evidently  erroneous. 

From  the  same  principle  of  equality  between  the 
guarantees  of  the  individual  criminal  and  of  honest 
society  we  infer  the  necessity  of  greater  strictness  in 
the  idemnification  of  the  victims  of  crime.  For  the 
platonic  damages  now  added  to  all  sorts  of  sentences, 
but  nearly  always  ineffectual,  we  believe  that  a  strict 
obligation  ought  to  be  substituted,  the  operation  of 
which  should  be  superintended  by  the  State,  in  the 
same  way  as  the  other  consequence  of  the  crime,  which 
is  called  the  punishment.  I  will  return  to  this  when  I 
trace  the  outline  of  the  positive  system  of  social 
defence  against  criminals. 

The  positive  school,  precisely  because  it  aims  at  an 
equilibrium  between  individual  and  social  rights,  is 
not  content  with  taking  the  part  of  society  against  the 
individual.  It  also  takes  the  part  of  the  individual 
against  society. 

In  the  first  place,  the  very  reforms  which  we  pro- 
pose for  the  indemnification  of  the  victims  of  crime, 
regarded  as  a  social  function,  as  well  as  the  operation 
of  the  punishment,  have  an  individualist  character. 
The  individualism  of  the  classical  school  was  not  even 
complete  as  a  matter  of  fact  ;  for  the  guarantees 
which  it  proposed  took  account  of  the  individual 
criminal  only,  and  did  not  touch  his  victims,  who  are 
also  individuals,  and  far  more  worthy  of  sympathy 
and  protection. 

But,  beyond  this,  we  may  point  to  three  reforms  as 
an  instance  of  the  positive  and  reasonable  guarantees 
of  the  individual  against  the  abuse  or  the  defects  of 


PRACTICAL  REFORMS.  I53 

social  authority.  Of  these  reforms  two  have  been  put 
forward  by  the  classical  school  also,  but,  like  criminal 
lunatic  asylums,  alternatives  for  short  terms  of  im- 
prisonment, and  so  on,  they  have  generally  remained 
inoperative,  for  they  are  not  in  harmony  with  the  bulk 
of  traditional  theory,  and  only  in  a  positive  system 
have  they  any  organic  and  efficacious  connection  with 
the  data  of  criminal  sociology.  I  refer  to  the  exercise 
of  popular  opinion,  the  correction  of  judicial  mistakes, 
and  the  transfer  of  sundry  punishable  offences  to  the 
category  of  civil  contraventions. 

The  institution  of  a  Ministry  of  Justice  corresponds 
to  the  demands  of  general  sociology,  which  exacts 
division  of  labour  even  in  collective  organisms,  and  to 
those  of  criminal  sociology,  which  requires  a  special 
and  distinct  organ  for  the  social  function  of  defence 
against  crime.  Indeed  it  has  become  indispensable 
as  a  necessary  judicial  organ,  even  in  nations  like 
England  which  have  not  yet  formally  established  it 
So  that,  far  from  confounding  the  Public  Prosecutor 
with  the  judicial  body,  we  see  the  necessity  of  giving 
to  this  office  a  more  elevated  character  and  a  distinct 
personality,  with  ampler  guarantees  of  independence 
of  the  executive  power. 

Nevertheless  the  action  of  the  Ministry  of  Justice, 
as  now  commonly  organised,  may  be  inadequate  for 
the  protection  of  the  victims  of  crime,  either  indirectly 
through  the  insufficient  number  of  its  functionaries,  or 
directly,  through  the  functional  defect  insisted  on  by 
M.  Gneist,  "  party  spirit  or  prejudice  in  favour  of  the 
governing    powers."       The   latter,   indeed,   notwith- 


154  CRIMINAL   SOCIOLOGY. 

Standing  M.  Glaser's  objection  that  government 
pressure  is  impossible,  have  no  need  to  give  special 
instructions,  of  a  more  or  less  compromising  character, 
in  order  to  exercise  a  special  influence  in  any  par- 
ticular case.  There  is  no  necessity  for  anything 
beyond  the  conservative  spirit  natural  to  every  insti- 
tution of  the  State,  or  the  principle  of  authority 
which  is  a  special  form  of  it,  apart  from  the  less 
respectable  motives  of  interested  subservience  to 
such  as  are  in  office  and  dispense  promotion. 

Hence  it  will  be  useful,  in  initiating  criminal  pro- 
ceedings, to  add  to  the  action  of  a  Public  Prosecutor 
(but  not  to  substitute  for  him)  the  action  of  private 
persons. 

Criminal  proceedings  by  citizens  may  take  two 
forms,  according  as  they  are  put  in  operation  only  by 
the  injured  person  or  by  any  individual. 

The  first  mode,  already  allowed  in  every  civilised 
nation,  needs  amendment  in  various  ways,  especially 
in  regard  to  the  subordination  of  the  penal  action  to 
the  plaint  of  the  injured  person,  which  ought  to  be 
restrained,  and  even  abolished.  In  fact,  whereas  this 
right  has  hitherto  been  regulated  by  law  only  in  view 
of  the  legal  and  material  gravity  of  the  offence,  it 
should  in  future  be  made  to  depend  on  the  perversity 
of  the  offender  ;  for  society  has  a  much  greater 
interest  in  defending  itself  against  the  author  of  a 
slight  offence  if  he  is  a  born  criminal,  or  a  criminal 
lunatic,  than  in  defending  itself  against  the  author  of 
a  more  serious  crime,  if  he  is  an  occasional  criminal 
or  a  criminal  of  passion.  And  the  necessity  of 
bringing  a  private  action  in  regard  to  certain  offences 


PRACTICAL  REFORMS.  155 

is  only  a  source  of  abuses,  and  of  demoralising 
bargains  between  offenders  and  injured  persons. 

On  the  other  hand,  this  prosecution  by  a  citizen 
who  has  been  injured  by  a  crime  or  an  offence  ought 
to  have  more  efficacious  guarantees,  either  for  the 
exercise  of  the  rights  of  the  injured  person,  or  against 
the  possible  neglect  or  abuse  of  the  Public  Prosecutor. 
If,  indeed,  he  is  obliged  to  take  up  every  charge  and 
action,  he  is  also  (in  Italy  and  France,  but  not  in 
Austria  or  Germany,  for  instance)  the  only  authority 
as  to  penal  actions,  and  consequently  as  to  penal 
judgments. 

In  Italy,  out  of  264,038  cases  which  came  before 
the  Public  Prosecutor  in  1880, six  per  cent, or  16,058, 
were  "  entered  on  the  records,"  or,  in  other  words,  they 
were  not  followed  up  ;  and  in  1889,  out  of  a  total  of 
271,279,  the  number  of  unprosecuted  cases  was  27,086, 
or  ten  per  cent.  That  is,  the  number  had  almost 
doubled  in  ten  years. 

In  France  the  annual  average  of  plaints,  charges, 
and  trials  with  which  the  Public  Prosecutor  was  con- 
cerned stood  at  114,181  in  the  years  1831-5  ;  at 
371,910  in  1876-80;  and  at  459,319  in  1887.  And 
the  cases  not  proceeded  with  were  34,643,  or  thirty 
per  cent.,  in  1831-5  ;  181,511,  or  forty-eight  per  cent., 
in  1876-80;  and.  239,061,  or  fifty-two  per  cent,  in 
1887.  That  is  to  say,  their  actual  and  relative  numbers 
were  nearly  doubled  in  fifty  years. 

Is  it  possible  that  in  ten,  or  even  in  fifty  years,  the 
moral  conditions  of  anation, and  its  inclination  to  bring 
criminal  charges,  should  be  so  modified  that  the 
number  of  cases  devoid  of  foundation  should  have 


156  CRIMINAL    SOCIOLOGY. 

been  almost  doubled  ?  It  is  certain  that  in  different 
nations  and  different  provinces  there  are  varying 
degrees  of  readiness  to  bring  charges  against  law- 
breakers rather  than  to  take  personal  vengeance. 
But  in  one  and  the  same  nation  this  vindictive  spirit 
and  this  readiness  to  bring  charges  cannot  vary  so 
greatly  and  rapidly,  especially  within  ten  years,  as  in 
Italy  ;  for  the  persistence  of  popular  sentiment  is  a 
well-known  fact.  It  is  rather  in  the  disposition  of  the 
functionaries  of  the  Ministry  of  Justice,  which  is  far 
more  variable,  that  we  must  look  for  an  explanation 
of  this  fact,  which  is  also  accounted  fSr  by  the  ten- 
dency to  diminish  the  statistical  records  of  crime. 

Now,  why  must  the  citizen  who  lodges  a  complaint 
of  what  he  considers  a  crime  or  offence  submit  to  the 
decision  of  the  Public  Prosecutor,  who  has  allowed 
his  action  to  drop  ^  This  consideration  has  led  to 
the  subsidiary  penal  action,  already  allowed  in 
Germany  and  Austria,  and  introduced  in  the  draft 
codes  of  procedure  in  Hungary,  Belgium,  and  France, 
which  is  a  genuine  guarantee  of  the  individual  as 
against  the  social  authority.  We  must  not,  however, 
deceive  ourselves  as  to  the  efficacy  or  frequency  of  its 
d'^eration,  especially  in  the  Latin  nations,  which  have 
none  too  much  individual  initiative. 

The  second  form  of  private  prosecution  is  that  of 
the  "  popular  punitive  action,"  which  existed  in  the 
Roman  penal  law — which,  it  may  be  said  in  passing, 
is  not  so  insignificant  as  the  classical  school  has 
supposed.  The  statement  of  M.  Carrara,  too  often 
repeated,  that  "  The  Romans,  who  were  giants  in 
civil   law,  are  pigmies  in  penal  law,"  is  not  in   my 


PRACTICAL   REFORMS.  1 57 

opinion  correct  It  is  true  that  the  Roman  penal  law 
was  not  organised  in  a  philosophical  system  ;  but  it  ex- 
hibits throughout  the  wonderfully  practical  judgment 
of  the  Roman  jurisconsults  ;  and  indeed  one  cannot 
see  why  they  should  have  lost  this  sense  when  dealing 
with  crimes  and  punishments.  On  the  other  hand, 
I  am  inclined  to  think  that  the  importance  of  the 
Roman  civil  law  has  been  exaggerated,  and  that  the 
spirit  of  the  corpus  jtiris  springs  from  social  and 
economic  conditions  so  different  from  our  own  that 
we  can  no  longer  feel  bound  to  submit  to  its  tyranny. 
The  penal  law  of  the  Romans,  however,  contains 
several  maxims  based  on  unquestionable  common 
sense,  which  deserve  to  be  rescued  from  the  oblivion 
to  which  they  have  been  condemned  bj' the  dogmatism 
of  the  classical  school.  Examples  of  these  are  the 
popular  punitive  action  ;  the  distinction  between  dolus 
bonus  and  dohis  malus,  which  belongs  to  the  theory  of 
motives  ;  the  stress  laid  upon  intentions  rather  than 
upon  their  actual  outcome  ;  the  law  oi  exceptio  veritatis ■ 
in  cases  of  slander,  which  under  the  pharisaism  of  the 
classical  theory  serves  only  to  give  immunity  to 
knaves  ;  the  penalty  of  twofold  or  threefold  restitu- 
tion for  theft,  in  place  of  a  few  days  or  weeks  in 
prison  ;  the  condemnation  of  the  most  hardened 
criminals  to  the  mines,  instead  of  providing  them  with 
V.ells,  as  comfortable  as  they  are  ineffectual — apart 
from  the  consideration  that  the  firedamp  in  mines  and 
the  unhealthiness  of  penal  settlements  would  be  less 
mischievous  if  their  victims  were  the  most  dangerous 
criminals  rather  than  honest  miners  and  husbandmen. 
To  return  to  the  popular  penal  action,  it  is  so  com- 
12 


158  CRIMINAL  SOCIOLOGY. 

monly  advocated,  even  by  the  classical  school,  that  it 
is  necessary  to  say  another  word  on  the  subject. 

Gneist,  from  his  special  point  of  view,  proposed 
that  this  action  should  be  introduced  into  penal 
procedure,  as  against  electoral  and  press  offences, 
offences  against  the  law  of  public  meetings  and  asso- 
ciations, and  the  abuse  of  public  authority.  But  I 
consider  that  this  action  would  be  a  necessary  guaran- 
tee, in  the  case  of  all  crimes  and  offences,  for  a 
reasonable  and  definite  adjustment  of  the  rights  of 
the  individual  and  of  society. 

Another  reform,  tending  to  a  more  effective  guaran- 
tee of  individual  rights,  is  the  revision  of  judicial 
errors  in  the  interests  of  all  who  are  unjustly  con- 
demned or  prosecuted.  Such  a  reform  has  been 
advocated  also  by  several  members  of  the  classical 
school  ;  but  it  seemed  only  too  likely  to  remain  with 
them  a  mere  benevolent  expression  of  opinion  ;  for 
it  can  only  be  carried  into  effect  by  curtailing  im- 
prisonment, and  by  a  more  frequent  and  stringent 
infliction  of  fines,  as  advocated  by  the  positive  school. 

Sanctioned  in  some  special  cases,  as  an  exceptional 
measure — as,  for  instance,  in  the  last  century  by  the 
Parliament  of  Toulouse,  and  in  our  age  by  the  Eng- 
lish Parliament— compensation  for  judicial  errors  was 
rendered  necessary  in  France  at  the  end  of  the  eigh- 
teenth century,  after  a  series  of  unjust  condemnations, 
even  death  sentences,  which  led  Voltaire  and  Beccaria 
to  demand  the  abolition  of  capital  punishment.  In 
1781  the  Society  of  Art  and  Literature  at  Chaions- 
sur-Marne  offered  a  prize  for  an  essay  on  the  subject, 
and  awarded  it  to  Brissot  de  Warville,  for  his  work, 


PRACTICAL   REFORMS,  159 

**  Le  Sang  Innocent  Veng6."  In  the  records  of  the 
Etats  G^neraux  there  were  many  votes  in  favour  of 
this  reform,  which  Louis  XVI.  caused  to  be  intro- 
duced on  May  8,  1788.  In  1790  Duport  brought  in 
a  measure  in  the  Constituent  Assembly  ;  but  it  was 
rejected  after  a  short  discussion  in  February,  1791, 
during  which  the  same  practical  objections  were  urged 
as  have  been  repeated  up  to  the  present  time.  Never- 
theless, the  Convention  decreed  special  indemnities, 
as,  for  instance,  a  thousand  francs  in  1793  ^o"*  one 
Busset,  "  for  arbitrary  imprisonment  and  prosecu- 
tion." In  1823  the  above-named  Society  at  Chalons- 
sur-Marne  proposed  the  same  subject  for  an  essay  ; 
and  it  has  been  the  object  of  sundry  proposals, 
all  rejected,  as  in  1867  during  the  discussion  on 
criminal  appeals,  on  amendments  moved  by  Jules 
Favre,  Richard,  and  Ollivier ;  and  again  in  1883  by 
Depute  Pieyre,  and  in  1890  by.  D^put6  Reinach. 

This  reform  has  been  advocated  by  Necker, 
amongst  other  writers,  in  his  memoir  on  "  Financial 
Administration  in  France,"  and  by  Pastoret,  Voltaire, 
Bentham,  Merlin,  Legraverend,  Helie,  Tissot,  and 
more  comprehensively  by  Marsangy  in  his  "  Reform 
of  the  Criminal  Law"  (1864).  Marsangy  advocated 
many  other  practical  reforms  which  have  since  been 
adopted,  in  substitution  for  the  objectionable  short 
terms  of  imprisonment.  More  recently  the  subject 
has  been  treated  in  France  by  the  magistrates  Ber- 
nard, Pascaud,  Nicolas,  Giacobbi,  and  by  the  Attorney- 
Generals  Molines,  Jourdan,  Houssard,  Dupry,  Bujard, 
in  their  inaugural  addresses. 

In    Italy  there  was  a  notable  precedent   for  this 


l6o  CRIMINAL  SOCIOLOGY. 

reform  in  the  Treasury  of  Fines,  established  for  Tus- 
cany in  1786,  and  for  the  kingdom  of  the  Two  Sicilies 
in  the  penal  code  of  18 19,  for  the  purpose  of  creating 
a  fund  for  compensation  in  cases  of  judicial  error.  In 
1886  Deputy  Pavesi  brought  in  a  measure  which  was 
not  discussed;  and  this  indemnification,  which  had 
already  been  proposed  in  1873  by  De  Falco,  keeper 
of  the  seals,  in  his  draft  of  an  Italian  penal  code,  was 
not  included  in  subsequent  Bills,  mainly  on  account 
of  the  financial  difficulties.  Amongst  writers  on 
criminology,  it  was  advocated  in  Italy  by  Carrara, 
Pessina,  and  Brusa  ;  in  Germany  by  Geyer  and 
Schwarze  ;  in  Belgium  by  Prins  and  others,  and  more 
recently  by  M.  Garofalo,  in  his  report  to  the  third 
National  Congress  on  Law,  at  Florence,  in  September, 
1891. 

Amongst  existing  laws,  indemnification  for  judicial 
errors,  whether  limited  to  cases  in  which  the  inno- 
cence of  condemned  persons  can  be  proved,  or  ex- 
tended to  persons  wrongfully  prosecuted,  is  included 
in  the  penal  codes  of  Hungary  and  Mexico,  and  by 
special  laws  in  Portugal  (1884),  Sweden  (1886),  Den- 
mark (1888),  and  especially  in  Switzerland,  in  the 
cantons  of  Fribourg,  Vaud,  Neuch^tel,  Geneva, 
B^le,  and  Berne. 

The  legal  principle  that  the  State  ought  to  indem- 
nify material  and  moral  injury  inflicted  by  its  func- 
tionaries, through  malice  or  negligence,  on  a  citizen 
who  has  done  nothing  to  subject  himself  to  prosecu- 
tion or  condemnation,  cannot  be  seriously  contested. 
But  the  whole  difficulty  is  reduced  to  deciding  in 
what  cases  the  right  to  indemnification  ought  to  be 


PRACTICAL  REFORMS.  l6l 

recognised,  and  then  to  providing  a  fund  out  of  which 
the  State  can  discharge  this  duty. 

For  the  latter  purpose  it  would  be  necessary  to 
include  an  adequate  sum  in  the  Budget.  This  was 
done  in  Bavaria,  in  1888,  by  setting  apart  5,000  marks 
annually ;  and  the  first  who  profited  by  this  provision 
received  a  pension  of  300  marks  per  annum,  after  being 
rendered  incapable  of  work  by  seven  years'  imprison- 
ment for  a  crime  which  he  had  not  committed.  But 
if  the  policy  of  retrenchment  imposed  on  the  European 
States  by  their  insane  military  expenditure  and  their 
chronic  wars  prevents  the  carrying  out  of  this  pro- 
posal, there  is  the  Italian  precedent  of  the  Treasury 
of  Fines,  which,  with  the  fines  inflicted,  or  which  ought 
to  be  inflicted  on  convicted  persons,  and  the  product 
of  prison  labour,  would  provide  the  necessary  amount 
for  the  indemnities  which  the  State  ought  to  pay  to 
innocent  persons  who  have  been  condemned  or  prose- 
cuted, as  well  as  to  the  victims  of  offences. 

As  for  the  cases  in  which  a  right  to  indemnification 
for  judicial  errors  ought  to  be  acknowledged,  it  seems 
to  me  evident  in  the  first  place  that  we  must  include 
those  of  convicted  persons  found  to  be  innocent 
on  a  revision  of  the  sentence.  Amongst  persons 
wrongfully  prosecuted,  I  think  an  indemnity  is  due 
to  those  who  have  been  acquitted  because  their  action 
was  neither  a  crime  nor  an  offence,  or  because  they 
had  no  part  in  the  action  (whence  also  follows  the 
necessity  of  verdicts  of  Not  Proven,  so  as  to  distinguish 
cases  of  acquittal  on  the  ground  of  proved  innocence) 
— always  provided  that  the  prosecuted  persons  have 
not  given  a  reasonable  pretext  for  their  trial  by  their 


l62  CRIMINAL  SOCIOLOGY. 

own  conduct,  or  their  previous  relapse,  or  their 
habitual  criminality. 

The  third  proposition  of  the  positive  school  in 
regard  to  individual  guarantees,  which  was  also  ad- 
vanced by  M.  Puglia,  is  connected  with  reform  of  the 
penal  code,  and  especially  with  the  more  effectual 
indemnification  of  the  victims  of  crime.  The  object 
is  to  prune  the  long  and  constantly  increasing  list  of 
crimes,  offences,  and  contraventions  of  all  acts  which 
result  in  slight  injury,  committed  by  occasional 
offenders,  or  "  pseudo-criminals  " — that  is,  by  normal 
persons  acting  merely  with  negligence  or  impru- 
dence. 

In  these  cases  the  personal  and  social  injury  is  not 
caused  maliciously,  and  the  agent  is  not  dangerous, 
so  that  imprisonment  is  more  than  ever  inappropriate, 
unjust,  and  even  dangerous  in  its  consequences. 
Deeds  of  this  kind  ought  to  be  eliminated  from  the 
penal  code,  and  to  be  regarded  merely  as  civil  offences, 
as  simple  theft  was  by  the  Romans ;  for  a  strict 
indemnification  will  be  for  the  authors  of  these  deeds 
a  more  effectual  and  at  the  same  time  a  less  de- 
moralising and  dangerous  vindication  of  the  law  than 
the  grotesque  condemnation  to  a  few  days  or  weeks 
in  prison. 

It  will  be  understood  that  the  classical  theory  of 
absolute  and  eternal  justice  cannot  concern  itself  with 
these  trifles,  which,  nevertheless,  constitute  two-thirds 
of  our  daily  social  and  judicial  existence  ;  for,  accord- 
ing to  this  theory,  there  is  always  an  offence  to  be 
visited  with  a  proportionate  punishment,  just  as  with 
a  murder,  or  a  highway  robbery,  or  a  slanderous  word. 


PRACTICAL  REFORMS.  163 

But  for  the  positive  school,  which  realises  the  actual 
and  practical  conditions  of  social  and  punitive  justice, 
there  is  on  the  other  hand  an  evident  need  of  relieving 
the  codes,  tribunals,  and  prisons  from  these  microbes 
of  the  criminal  world,  by  excluding  all  punishments 
by  imprisonment  for  what  Venturi  and  Turati  happily 
describe  as  the  atomic  particles  of  crime,  and  by 
relaxing  in  some  degree  that  monstrous  network  of 
prohibitions  and  punishments  which  is  so  inflexible 
for  petty  transgressors  and  offenders,  but  so  elastic 
for  serious  evil-doers. 


II. 


The  reforms  which  we  propose  in  punitive  law 
are  based  on  the  fundamental  principle  already 
established  on  the  data  of  anthropology  and  criminal 
statistics. 

If  the  ethical  idea  of  punishment  as  a  retribution 
for  crime  be  excluded  from  the  repressive  function  of 
society,  and  if  we  regard  this  function  simply  as  a 
defensive  power  acting  through  law,  penal  justice  can 
no  longer  be  squared  with  a  minute  computation  of 
the  moral  responsibility  or  culpability  of  the  criminal. 
It  can  have  no  other  end  than  to  prove,  first,  that  the 
person  under  trial  is  the  author  of  the  crime,  and, 
then,  to  which  type  of  criminals  he  belongs,  and,  as  a 
consequence,  what  degree  of  anti-social  depravity  and 
re-adaptability  is  indicated  by  his  physical  and  mental 
qualities. 

The  first  and  fundamental  inquiry  in  every  criminal 


164  CRIMINAL  SOCIOLOGY. 

trial  will  always  be  the  verification  of  the  crime  and 
the  identification  of  the  criminal. 

But  when  the  connection  of  the  accused  and  the 
crime  is  once  established,  either  the  accused  produces 
evidence  of  his  honesty,  or  of  the  uprightness  of  his 
motives — the  only  case  in  which  his  acquittal  can  be 
demanded  or  taken  into  consideration — or  else  it  is 
proved  that  his  motives  were  anti-social  and  unlawful, 
and  then  there  is  no  place  for  those  grotesque  and 
often  insincere  contests  between  the  prosecution  and 
the  defence  to  prevent  or  to  secure  an  acquittal, 
which  will  be  impossible  whatever  may  be  the  psycho- 
logical conditions  of  the  criminal.  The  one  and 
only  possible  issue  between  the  prosecution  and  the 
defence  will  be  to  determine,  by  the  character  of  the 
accused  and  of  his  action,  to  what  anthropological 
class  he  belongs,  whether  he  is  a  born  criminal,  or 
mad,  or  an  habitual  or  occasional  criminal,  or  a 
criminal  of  passion. 

In  this  case  we  shall  have  no  more  of  those  combats 
of  craft,  manipulations,  declamations,  and  legal  de- 
vices, which  make  every  criminal  trial  a  game  of 
chance,  destroying  public  confidence  in  the  adminis- 
tration of  justice,  a  sort  of  spider's  web  which  catches 
flies  and  lets  the  wasps  escape. 

The  crime  will  always  be  the  object  of  punitive  law, 
even  under  the  positive  system  of  procedure  ;  but, 
instead  of  being  the  exclusive  concern  of  the  judge  it 
will  only  be  the  ground  of  procedure,  and  one  symp- 
tom amongst  others  of  the  depravation  and  re- 
adaptability  of  the  criminal,  who  will  himself  be  the 
true  and  living  subject  of  the  trial.    As  it  is,  the  whole 


PRACTICAL  REFORMS.  165 

trial  is  developed  from  the  material  fact ;  and  the 
whole  concern  of  the  judge  is  to  give  it  a  legal  defini- 
tion, so  that  the  criminal  is  always  in  the  background, 
regarded  merely  as  the  ultimate  billet  for  a  legal 
decision,  in  accordance  with  some  particular  article  in 
the  penal  code — except  that  the  actual  observance  of 
this  article  is  at  the  mercy  of  a  thousand  accidents  of 
which  the  judge  knows  nothing,  and  which  are  all 
foreign  to  the  crime,  and  to  the  criminal. 

If  we  rid  ourselves  of  the  assumption  that  we  can 
measure  the  moral  culpability  of  the  accused,  the 
whole  process  of  a  criminal  trial  consists  in  the 
assemblage  of  facts,  the  discussion,  and  the  decision 
upon  the  evidence.  For  the  classical  school,  on  the 
other  hand,  such  a  trial  has  been  regarded  as  a 
succession  of  guarantees  for  the  individual  against 
society,  and,  by  a  sort  of  reaction  against  the  methods 
of  legal  proof,  has  been  made  to  turn  upon  the  private 
conviction,  not  to  say  the  intuition,  of  the  judge  and 
counsel. 

A  criminal  trial  ought  to  retrace  the  path  of  the 
crime  itself,  passing  backward  from  the  criminal 
action  (a  violation  of  the  law),  in  order  to  discover 
the  criminal,  and,  in  the  psychological  domain,  to 
establish  the  determining  motives  and  the  anthro- 
pological type.  Hence  arises  the  necessity  for  the 
positive  school  of  reconsidering  the  testimony  in  a 
criminal  case,  so  as  to  give  it  its  full  importance,  and 
to  reinforce  it  with  the  data  and  inferences  not  only  of 
ordinary  psychology,  as  the  classical  school  has  always 
done   (Pagano   for   instance,   and   Bentham,   Mitter- 


1 66  CRIMINAL  SOCIOLOGY. 

maier,  Ellero,  and  others),  but  also,  and  above  all, 
with  the  data  and  inferences  of  criminal  anthropology 
and  psychology. 

In  the  evolution  of  the  theory  of  evidence  we  may 
distinguish  four  characteristic  stages,  as  M.  Tarde 
observed — the  religious  stage,  with  its  ordeals  and 
combats  ;  the  legal  stage,  accompanied  by  torture  ; 
the  political  stage,  with  private  conviction  and  the 
jury  ;  and  the  scientific  stage,  with  expert  knowledge 
of  experimental  results,  systematically  collected  and 
studied,  which  is  the  new  task  of  positive  procedure. 

We  must  glance  at  each  of  the  three  elements  of 
the  criminal  trial  :  collection  of  evidence  (police  and 
preliminary  inquiry)  ;  discussion  of  evidence  (prose- 
cution and  defence),  and  decision  upon  evidence 
(judges  and  juries). 

It  is  evident  in  the  first  place,  as  I  remarked  in  the 
first  edition  of  this  work,  and  as  Righini,  Garofalo, 
Lombroso,  Alongi,  and  Rossi  have  confirmed,  that  a 
study  of  the  anthropological  factors  of  crime  provides 
the  guardians  and  administrators  of  the  law  with 
new  and  more  certain  methods  in  the  detection 
of  the  guilty.  Tattooing,  anthropometry,  physiog- 
nomy, physical  and  mental  conditions,  records  of 
sensibility,  reflex  activity,  vaso-motor  reactions,  the 
range  of  sight,  the  data  of  criminal  statistics,  facili- 
tate and  complete  the  amassing  of  evidence,  personal 
identification,  and  hints  as  to  the  capacity  to  commit 
any  particular  crime  ;  and  they  will  frequently  suffice 
to  give  police  agents  and  examining  magistrates  a 
scientific  guidance  in  their  inquiries,  which  now 
depend  entirely  on  their  individual  acuteness  and 
mental  sagacity. 


PRACTICAL   REFORMS.  167 

And  when  we  remember  the  enormous  number  of 
crimes  and  offences  which  are  not  punished,  for  lack 
or  inadequacy  of  evidence,  and  the  frequency  of  trials 
which  are  .based  solely  on  circumstantial  hints,  it  is 
easy  to  see  the  practical  utility  of  the  primary  con- 
nection between  criminal  sociology  and  penal  pro- 
cedure. 

The  practical  application  of  anthropometry  to 
the  identification  of  criminals,  and  to  the  question 
of  recidivism,  which  was  begun  in  Paris  by  M. 
Bertillon,  and  subsequently  adopted  by  almost  all  the 
states  of  Europe  and  America,  is  too  familiar  to  need 
description.  It  will  be  sufficient  to  recall  the  modi- 
fications of  Bertillon's  s)'stem  by  Anfosso,  with  the 
actual  collection  of  anthropometric  data,  and  their 
inclusion  in  the  ordinary  records  of  justice. 

Thus  the  sphygmographic  data  on  the  circulation 
of  the  blood,  which  reveal  the  inner  emotions,  in  spite 
of  an  outward  appearance  of  calm  or  indifference, 
have  already  served  to  show  that  a  person  accused  of 
theft  was  not  guilty  of  it,  but  that  he  was  on  the  con- 
trary guilty  of  another  theft,  of  which  he  had  not  been 
so  much  as  suspected.  On  another  occasion  they 
established  the  innocence  of  a  man  condemned  to 
death.  We  shall  have  more  speaking  and  frequent 
illustrations  when  these  inquiries  have  been  placed 
regularly  at  the  service  of  criminal  justice. 

The  sphygmograph  may  also  be  useful  in  the 
diagnosis  of  simulated  disease,  after  the  example  set 
M.  Voisin  in  the  case  of  a  sham  epileptic  in  Paris, 
"  whose  sphygmographic  lines  have  no  resemblance 
to  those  of  true  epileptics  before  and  after  a  fit,  and 


l68  CRIMINAL  SOCIOLOGY. 

only  resemble  those  produced  by  normal  persons 
after  a  violent  gesticulation." 

As  for  the  possible  utilisation  of  hypnotism,  we 
must  be  cautious  before  we  draw  any  legal  con- 
clusions from  it ;  but  it  cannot  be  questioned  that 
this  is  a  valuable  source  of  scientific  aid  in  the  syste- 
matic collection  of  criminal  evidence. 

But,  for  the  present,  the  most  certain  and  profitable 
aids  in  the  collection  of  evidence  are  those  afforded 
by  the  organic  and  psychical  characteristics  of 
criminals.  In  my  study  on  homicide  I  reckoned 
up  many  psychological  and  psycho-pathological 
symptoms  which  characterise  the  murderer,  the 
homicidal  madman,  and  the  homicide  through 
passion.  And  in  my  professional  practice  I  have 
often  found  by  experience  that  there  is  a  great 
suggestive  efficacy  in  these  psychological  symptoms 
in  regard  to  the  conduct  of  a  criminal,  before,  during, 
and  after  a  crime  ;  and  it  is  important  to  bring  this 
knowledge  scientifically  before  detectives  and  judges. 

These  data  are  not  applicable  to  accused  persons 
exclusively.  When  we  remember  the  enormous 
importance  of  oral  evidence  in  the  chain  of  criminal 
proof,  and  the  rough  traditional  empiricism  of  the 
criteria  of  credibility,  which  are  daily  applied  in  all 
trials  to  all  kinds  of  witnesses,  by  men  who  regard 
them,  like  the  prisoners,  as  an  average  abstract  type — 
excluding  only  the  definite  cases  of  inability  to  give 
evidence,  which  are  defined  beforehand  with  as  much 
method  as  the  cases  of  irresponsibility — the  necessity 
of  calling  in  the  aid  of  scientific  psychology  and 
psycho-pathology  is  manifest. 


PRACTICAL  REFORMS.  169 

For  instance,  not  to  dwell  on  the  absurd  violation 
of  these  traditional  criteria  of  credibility,  when  police 
officers  are  admitted  as  witnesses  (often  the  only  wit- 
nesses) of  resistance  to  authority  or  violence,  wherein 
they  are  doubly  interested  parties,  how  often  in  our 
courts  do  we  give  a  thought  to  the  casual  imagina- 
tions or  credulity  of  children,  women,  weak-nerved  or 
hysterical  persons,  and  so  on  ?  Counsel  for  defence 
or  prosecution  who  desired  to  know  if  any  particular 
witness  is  or  is  not  hysterical  would  bring  a  smile  to 
the  face  of  the  judge,  very  learned,  no  doubt,  in 
Roman  law  or  legal  precedents,  but  certainly  ignorant 
in  physiology,  psychology,  and  psycho-pathology. 
Yet  the  tendency  to  slander  in  hysterical  cases,  which 
M.  Ceneri  urged  so  eloquently  in  a  celebrated  trial, 
or  the  tendency  to  untruth  in  children,  which  M. 
Motet  has  ably  illustrated,  are  but  manifest  and 
simple  examples  of  this  applicability  ot  normal, 
criminal,  and  pathological  psychology  to  the  credi- 
bility of  witnesses.  And,  under  its  influence,  how 
much  of  the  clear  atmosphere  of  humanity  will  stimu- 
late our  courts  of  justice,  which  are  still  too  much 
isolated  from  the  world  and  from  human  life,  where, 
nevertheless,  prisoners  and  witnesses  come,  and  too 
often  come  again,  living  phantoms  whom  the  judges 
know  not,  and  only  see  confusedly  through  the  thick 
mist  of  legal  maxims,  and  articles  of  the  code,  and 
criminal  procedure. 

Apart  from  these  examples,  which  prove  the  im- 
portance of  what  M.  Sarraute  justly  called  "judicial 
applications  of  criminal  sociology,"  the  fundamental 
reform  needed  in  the  scientific  preparation  of  criminal 


170  CRIMINAL   SOCIOLOGY, 

evidence  is  the  creation  of  magisterial  experts  in  every 
court  of  preliminary  inquiry.  In  a  question  of  forgery, 
poisoning,  or  abortion,  the  judge  has  recourse  to  ex- 
perts in  handwriting,  chemistry,  or  obstetrics ;  but 
beyond  -these  technical,  special,  and  less  frequent 
cases,  in  every  criminal  trial  the  basis  of  inquiry  is  or 
ought  to  be  formed  by  the  data  of  criminal  biology, 
psychology,  and  ps\xho-pathology.  So  that,  over  and 
above  the  knowledge  of  these  sciences  which  is  neces- 
sary to  judges,  magistrates,  and  police  officers,  it  is 
most  important  that  an  expert,  or  several  experts  in 
criminal  anthropology  should  be  attached  to  every 
court  of  criminal  inquiry. 

This  would  provide  us  with  an  anthropological 
classification,  certain  and  speedy,  of  every  convicted 
person,  as  well  as  a  legal  classification  of  the  material 
fact,  and  we  should  avoid  the  scandal  of  what  are 
known  as  experts  for  the  prosecution  and  experts  for 
the  defence.  There  should  be  but  one  finding  of 
experts,  either  by  agreement  between  them  or  by  a 
scientific  reference  to  arbitration,  as  in  the  German, 
Austrian,  and  Russian  system  ;  and  over  this  finding 
the  judges  and  the  litigants  should  have  no  other 
power  than  to  call  for  explanations  from  the  chief 
of  the  experts. 

In  this  way  we  should  further  avoid  the  scandal  ot 
judges  entirely  ignorant  of  the  elementary  ideas  of 
criminal  biology,  psychology,  and  psycho-pathology, 
like  the  president  of  an  assize  court  whom  I  heard 
telling  a  jury  that  he  was  unable  to  say  why  an  expert 
"  wanted  to  examine  the  feet  ot  a  prisoner  in  order  to 
come  to  a  decision  about  his  head."     This  president, 


PRACTICAL  REFORMS.  171 

who  was  an  excellent  magistrate  and  a  learned  jurist 
was  wholly  unacquainted  with  the  elements  of  the 
theory  of  degeneracy,  like  one  of  his  colleagues 
whom  I  heard  saying,  when  the  expert  spoke  of  the 
abnormal  shape  of  the  ears  of  a  prisoner  (in  accord 
with  the  inquiries  of  Morel  and  Lombroso),  "  That 
depends  on  how  the  hat  is  worn." 

For  in  consequence  of  the  assumption,  made  by 
Kant  amongst  others,  that  questions  of  mental  disease 
belong  to  the  philosopher  rather  than  to  the  physician, 
and  of  the  absurd  and  shallow  idea  which  superficial 
persons  entertain  of  those  who  are  insane,  picturing 
them  as  constantly  raving,  the  judge  or  juryman  who 
pins  his  faith  to  an  expert  in  handwriting  thinks  him- 
self above  the  necessity  of  taking  the  opinion  of  an 
expert  in  insanity. 

It  must  be  recognised,  however,  that  this  foolish 
assumption  is  partly  due  to  a  reasonable  anxiety  for 
the  public  safety,  under  the  sway  of  the  classical 
theories,  which  allow  the  acquittal  and  discharge  of 
criminals  who  are  found  to  be  of  unsound  mind.  It 
will  eventually  disappear,  either  by  the  wider  dif- 
fusion of  elementary  ideas  of  psycho-pathology  or  by 
the  application  of  positive  theories,  which  are  far 
from  carrying  the  proved  insanity  of  a  prisoner  to  the 
dangerous  and  absurd  conclusion  of  his  acquittal. 

After  the  first  stage  of  the  collection  of  evidence, 
during  which  we  can  admit  the  legal  representation 
of  the  accused,  especially  for  the  sake  of  eliciting  both 
sides  of  the  question,  without,  however,  going  so  far 
as  the  individual  exaggerations  of  complete  publicity 
for  the  preliminary  inquiry,  we  come  to  the  second 


172  CRIMINAL   SOCIOLOGY. 

stage  of  procedure,  that  of  the  public  discussion  of 
the  evidence. 

The  principals  in  this  discussion  represent  the 
prosecution  (public  or  private)  and  the  defence  ;  and 
for  these,  as  I  cannot  go  into  great  detail,  I  will  only- 
mention  one  necessary  reform.  That  is  the  institu- 
tion of  a  sort  of  public  defence,  by  a  legal  officer 
such  as  used  to  be  found  in  certain  of  the  Italian 
provinces,  under  the  title  of  "  advocate  of  the  poor," 
who  ought  to  be  on  a  par  with  the  public  prosecutor, 
and  to  be  substituted  for  the  present  institution  of 
the  official  defence,  which  is  a  complete  failure. 

As  for  the  actual  discussion  of  evidence,  when  we 
have  established  the  scientific  rules  of  evidence,  based 
upon  expert  acquaintance  with  criminal  anthropo- 
logy, and  when  we  have  eliminated  all  verbal  conten- 
tion over  the  precise  measure  of  moral  responsibility 
in  the  prisoner,  the  whole  debate  will  be  a  criticism 
of  the  personal  and  material  indications,  of  the  deter- 
mining motives,  and  the  anthropological  category  to 
which  the  accused  belongs,  and  of  the  consequent 
form  of  social  defence  best  adapted  to  his  physical 
and  psychical  character. 

The  practical  conclusion  of  the  criminal  trial  is 
arrived  at  in  the  third  stage,  that  of  the  decision  on 
the  evidence. 

So  far  as  we  are  concerned,  the  criminal  adjudica- 
tion has  the  simple  quality  of  a  scientific  inquiry, 
subjective  and  objective,  in  regard  to  the  accused  as 
a  possible  criminal,  and  in  relation  to  the  deed  of 
which  he  is  alleged  to  be  the  author.  We  naturally 
therefore    require    in    the    judge    certain     scientific 


PRACTICAL   REFORMS,  1 73 

knowledge,  and  not  merely  the  intuition  of  common 
sense. 

But  as  the  consultation  of  the  jury,  by  reason  of 
its  inseparable  political  aspect,  must  take  place  in 
private,  we  can  only  insist  on  the  fundamental  reform 
of  the  judicial  organisation,  which  alone  can  realise 
the  scientific  principle  of  criminal  adjudication.  It 
was  Garofalo  who,  in  the  earlier  days  of  the  positive 
school,  urged  that  civil  and  criminal  judges  ought 
to  be  wholly  distinct,  and  that  the  latter  ought  to 
be  versed  in  anthropology,  statistics,  and  criminal 
sociology,  rather  than  in  Roman  law,  legal  history, 
and  the  like,  which  throw  no  light  on  the  judgment 
of  the  criminal. 

Learned  jurists,  proficient  in  the  civil  law,  are  least 
fit  to  make  a  criminal  judge,  accustomed  as  they  are 
by  their  studies  to  abstractions  of  humanity,  looking 
solely  to  the  juridical  bearings,  inasmuch  as  civil  law 
is  mostly  ignorant  of  all  that  concerns  the  physical 
and  moral  nature  of  individuals.  The  demoralisation 
or  uprightness  of  a  creditor,  for  instance,  has  no 
influence  for  or  against  the  validity  of  his  credit. 

The  jurist,  therefore,  in  a  matter  of  criminal  adju- 
dication, entirely  loses  sight  of  the  personal  conditions 
of  the  accused,  and  the  social  conditions  of  the  com- 
munity, and  confines  his  attention  to  the  deed,  and 
to  the  maxims  of  a  so-called  retributive  justice. 
They  who  are  called  upon  to  try  criminals  ought  to 
possess  the  ideas  necessary  to  the  natural  study  of  a 
criminal  man,  and  should  therefore  constitute  an 
order  of  magistrates  wholly  distinct  from  that  of  civil 
judges. 

13 


174  CRIMINAL   SOCIOLOGY. 

The  practical  means  of  securing  this  fundamental 
reform  of  the  judicial  bench  ought  to  begin  with  the 
organisation  of  the  university,  for  in  the  courses  of 
the  faculty  of  law  it  will  be  necessary  to  introduce 
a  more  vigorous  and  modern  stream  of  social  and 
anthropological  studies,  which  must  also  eventually 
put  new  life  into  the  ancient  maxims  of  the  civil 
law. 

In  the  second  place,  law  students  at  the  university 
ought  to  be  admitted  to  what  Ellero  called  a  science 
of  clinical  criminology,  that  is  to  interviews  with 
and  systematic  observations  of  prisoners.  The  first 
Congress  of  Criminal  Anthropology  approved  the 
proposal  of  M.  Tarde,  upon  the  following  motion  of 
Moleschot-Ferri : — "  The  Congress,  in  agreement  with 
the  scientific  tendency  of  criminal  anthropology,  is 
of  opinion  that  prison  authorities,  whilst  taking 
necessary  precautions  for  internal  discipline,  and  for 
the  individual  rights  of  condemned  prisoners,  should 
admit  to  the  clinical  study  of  criminals  all  professors 
and  students  of  penal  law  and  legal  medicine,  under 
the  direction  and  responsibility  of  their  own  pro- 
fessors, and  if  possible  in  the  character  of  societies 
for  the  aid  of  actual  and  discharged  prisoners." 

Lastly,  a  special  school  should  be  founded  for 
policemen  and  prison  warders,  with  the  object  of 
securing  detectives  distinguished  not  only  for  their 
personal  ability,  but  also  for  their  knowledge  of 
criminal  biology  and  psychology. 

To  these  reforms,  which  guarantee  the  scientific 
capacity  of  the  criminal  judge,  we  must  add  reforms 
which  would  secure   his   complete   independence  of 


PRACTICAL  REFORMS.  175 

the  executive  authority,  which  is  now  the  only 
authority  responsible  for  the  advancement  and  allo- 
cation of  judges.  But  this  independence  would  not 
be  exempt  from  every  kind  of  control,  such  as  public 
opinion,  and  disciplinary  authority  to  some  extent 
distinct  from  the  persojinel  of  the  bench  ;  for  other- 
wise the  judicial  authority  would  soon  become  another 
form  of  insupportable  tyranny. 

The  most  effectual  mode  of  securing  the  inde- 
pendence of  the  judges  is  to  improve  their  position 
in  life.  For  admitting  that  a  fixed  stipend,  payable 
every  month,  makes  a  man  content  with  a  somewhat 
lower  figure,  still  it  is  certain  that  in  these  days, 
with  a  few  honourable  exceptions,  the  selection  of 
judges  is  not  satisfactory,  because  low  salaries  only 
attract  such  as  could  not  earn  more  by  the  practice 
of  their  profession. 

The  personal  character  of  the  bench  vitally  affects 
the  quality  of  the  government  as  a  whole.  The  most 
academic  and  exalted  codes  are  of  little  avail  if  there 
are  not  good  judges  to  administer  them  ;  but  with 
good  judges  it  matters  little  if  the  codes  or  statutes 
are  imperfect. 

In  criminal  law  the  application  of  the  statute  to 
the  particular  case  is  not,  or  should  not  be,  a  mere 
question  of  legal  and  abstract  logic,  as  it  is  in  civil 
law.  It  involves  the  adaptation  of  an  abstract  rule, 
in  a  psychological  sense,  to  a  living  and  breathing 
man  ;  for  the  criminal  judge  cannot  separate  himself 
from  the  environment  and  social  life,  so  as  to  become 
a  more  or  less  mechanical  lex  loquens.  The  living 
and  human  tests  of  every  criminal  sentence  reside  in 


176  CRIMINAL   SOCIOLOGY. 

the  conditions  of  the  act,  the  author,  and  reacting 
society,  far  more  than  in  the  written  law. 

Herein  we  have  an  opportunity  of  solving  the  old 
question  of  the  authority  of  the  judge,  wherein  we 
have  gone  from  one  excess  to  another,  from  the 
unbounded  authority  of  the  Middle  Ages  to  the 
Baconian  aphorism  respecting  the  law  and  the  judge, 
according  to  which  the  law  is  excellent  when  it  leaves 
least  to  the  judge,  and  the  judge  is  excellent  when 
he  leaves  himself  the  least  independent  judgment. 

If  the  function  of  the  criminal  judge  were  always 
to  be,  as  it  is  now,  an  illusory  and  quantitative 
inquiry  into  the  moral  culpability  of  the  accused, 
with  the  equally  quantitative  and  Byzantine  rules 
on  attempt,  complicity,  competing  crimes,  and  so 
forth — that  is  to  say,  if  the  law  were  to  be  applied 
to  the  crime  and  not  to  the  criminal,  then  it  is 
necessary  that  the  authority  of  the  judge  should  be 
restrained  within  the  numerical  barriers  of  articles  of 
the  code,  of  so  many  years,  months,  and  days  of 
imprisonment  to  be  dosed  out,  just  as  the  Chinese 
law  decides  with  much  exactitude  the  length  and 
diameter  of  the  bamboo  rods,  which  in  the  penal 
system  of  the  Celestial  Empire  have  the  same 
prominence  as  penitentiary  cells  have  with  us. 

But  if  a  criminal  trial  ought  to  be,  on  the  other 
hand,  a  physio-psychological  examination  of  the 
accused,  the  crime  being  relegated  to  the  second  line, 
as  far  as  punishment  is  concerned,  the  criminal  being 
kept  in  the  front,  then  it  is  clear  that  the  penal  code 
should  be  limited  to  a  few  general  rules  on  the  modes 
of  defence  and  social  sanction,  and  on  the  constituent 


PRACTICAL   REFORMS.  177 

elements  of  every  crime  and  offence,  whilst  the  judge 
should  have  greater  liberty,  controlled  by  the  scien- 
tific and  positive  data  of  the  trial,  so  that  he  may 
judge  the  man  before  him  with  a  knowledge  of 
humanity. 

The  unfettered  authority  of  the  judge  is  inad- 
missible in  regard  to  the  forms  of  procedure,  which 
for  the  prosecuted  citizen  are  an  actual  guarantee 
against  judicial  errors  and  surprises,  but  which  should 
be  carefully  distinguished  from  that  hollow  and 
superstitious  formalism  which  generates  the  most 
grotesque  inanities,  such  as  an  error  of  a  word  in 
the  oath  taken  by  witnesses  or  experts,  or  a  blot  of 
ink  on  the  signature  of  a  clerk. 


III. 

Scientific  knowledge  of  criminals  and  of  crime, 
not  only  as  the  deed  which  preceded  the  trial,  but 
also  as  a  natural  and  social  phenomenon — this,  then, 
is  the  fundamental  principle  of  every  reform  in  the 
judicial  order  ;  and  this,  too,  is  a  condemnation  of 
the  jury.  Whilst  Brusa,  one  of  the  most  doctrinaire 
of  the  Italian  classical  school,  foretold  a  steady 
decline  of  the  "technical  element"  in  the  magistracy, 
and  consequently  a  persistent  intervention  of  the 
popular  influence  in  the  administration  of  justice, 
the  positive  school,  on  the  other  hand,  has  always 
predicted  the  inevitable  decline  of  the  jury  in  the 
trial  of  crimes  and  ordinary  offences.^ 

'  It   is   interesting  to  observe  that   Carrara,  in  spite  of  his  pubhc 
advocacy  of  the  jury,  wrote  in  a  private  letter  in  1870  (published  on 


178  CRIMINAL  SOCIOLOGY. 

Theodore  Jouffroy,  after  listening  at  the  Uni- 
versity of  Pisa  to  a  lecture  by  Carmignani  against 
the  jury,  said,  "  You  are  defending  logic,  but  slaying 
liberty." 

Apart  from  the  question  whether  liberty  is  possible 
without  logic,  it  is  nevertheless  a  fact  that  there  is 
always  a  prominent  political  character  in  the  jury. 
This  accounts  for  the  more  or  less  declamatory 
defences  of  this  judicial  institution,  which  is  no 
favourite  with  the  criminal  sociologist. 

At  the  end  of  the  eighteenth  century,  when  there 
was  a  scientific  and  legislative  tendency  towards  the 
creation  of  an  independent  order  of  magistrates,  the 
French  Revolution,  mistrusting  the  whole  aristocracy 
and  social  caste,  opposed  this  tendency,  believing 
enthusiastically  in  the  omnipotence  and  omniscience 
of  the  people,  and  instituted  the  jury.  And  whilst 
in  the  political  order  it  was  inspired  by  classical 
antiquity,  in  the  order  of  justice  it  adopted  this 
institution  from    England.      The  jury  was  not  un- 

the  unveiling  of  his  monument  at  Lucca) : — "  I  expressed  my  opinion 
as  to  the  jury  in  1841,  in  an  article  published  in  the  Annals  of  Tuscan 
Jurisprudence — namely,  that  criminal  justice  was  becoming  a  lottery. 
Justice  is  being  deprived  of  her  scales  and  provided  with  a  dice-box. 
This  seems  to  me  to  be  the  capital  defect  of  the  jury.  All  other 
defects  might  be  eliminated  by  a  good  law,  but  this  one  is  inseparable 
fiom  the  jury.  .  .  .  Even  amongst  magistrates  we  may  find  the  harsh 
and  the  clement ;  but  in  the  main  they  judge  according  to  legal 
argument,  and  one  can  always  more  or  less  foresee  the  issue  of  a  trial 
But  with  juries  all  forecast  is  rash  and  deceptive.  They  decide  by 
sentiment  ;  and  what  is  there  more  vague  and  fickle  than  sentiment 
.'  .  With  juries,  craft  is  more  serviceable  to  an  advocate  tlinn  know- 
ledge. I  once  had  to  defend  a  husliand  who  had  killed  his  wife's  lover 
in  a  cafe.  I  challenged  the  bachelors  on  the  jury,  and  accepted  the 
married  men.  After  that,  I  was  sure  of  success,  and  I  succeeded.  .  .  . 
This  is  the  real  essential  vice  of  the  jury,  which  no  legislative  measure 
couid  overcome." 


PRACTICAL   REFORMS.  lyg 

known  to  the  Republic  of  Athens  and  Rome,  but 
it  was  developed  in  the  Middle  Ages  by  the  "  bar- 
barians," as  an  instrument  which  helped  the  people 
to  escape  from  tyranny  in  the  administration  of  the 
law.  It  used  to  be  said  that  the  jury  made  a  reality 
of  popular  sovereignty,  and  substituted  the  common 
sense  and  good  will  of  the  people  for  the  cold 
dogmatism  of  the  lawyers,  penetrated  as  they  were 
by  class  prejudices.  From  this  point  of  view  the 
jury  was  too  much  in  accord  with  the  general 
tendency  of  the  ideas  of  the  day  not  to  be  greedily 
adopted.  It  was  another  example  of  the  close  con- 
nection between  philosophic  ideas,  political  institu- 
tions, and  the  judicial  organisation. 

The  jury,  transported  to  the  Continent,  in  spite  of 
the  improvements  recorded  by  Bergasse  in  his  report 
to  the  Constituent  Assembly,  on  August  14,  1789, 
was  a  mere  counterfeit  of  that  which  it  was,  and  is,  in 
England.  But  its  political  character  is  still  so  attractive 
that  it  has  many  supporters  to  this  day,  though  the 
results  of  its  employment  in  various  countries  are  not 
very  happy. 

Yet,  as  the  jury  is  a  legal  institution,  we  must 
consider  its  advantages  and  defects,  both  from  the 
political  and  from  the  legal  point  of  view,  and  accept 
the  conclusion  forced  upon  us  by  the  predominance 
of  one  or  the  other. 

.  From  the  political  standpoint,  it  is  unquestionable 
that  the  jury  is  a  concession  to  popular  sovereignty  ; 
for  it  is  admitted  that  the  power  of  the  law  not  only 
originates  with  the  people,  but  is  also  directly  exer- 
cised by  them. 


l80  CRIMINAL   SOCIOLOGY. 

The  jury  may  also  be  a  guarantee  of  civic  and 
political  liberties  as  against  the  abuses  of  govern- 
ment, which  are  far  more  easy  with  a  small  num- 
ber of  judges,  more  or  less  subordinate  to  the 
government. 

Again,  the  jury  may  be  a  means  of  affirming  the 
sentiment  of  equality  amongst  citizens,  each  of  whom 
may  to-morrow  become  a  judge  of  his  equals,  and 
of  spreading  political  education,  with  a  practical 
knowledge  of  the  law.  It  is  true  that,  with  this 
knowledge  of  the  law,  juries  also  learn  the  details  of 
every  kind  of  crime,  without  the  equally  constant 
evidence  of  virtuous  actions  ;  and  there  is  here  a 
danger  of  moral  contagion  from  crime.  But,  from 
the  political  point  of  view,  it  is  certain  that  the  jury 
may  awaken,  with  a  knowledge  of  the  law,  a  con- 
sciousness of  civic  duties,  which  are  too  frequently 
undertaken  as  a  forced  and  troublesome  burden. 

On  these  political  advantages  of  the  jury,  however, 
a  few  remarks  may  be  made. 

In  the  first  place,  the  concession  to  popular  sove- 
reignty is  reduced  to  very  small  proportions  by  the 
limitations  of  the  jury  list,  and  of  the  functions  of  the 
jury,  which  legislation  in  every  country  is  compelled 
to  impose. 

The  essential  characteristic  distinguishing  the  jury 
from  the  judge  is  especially  marked  by  the  origin  of 
their  authority;  for  the  jury  is  a  judge  simply  because 
he  is  a  citizen,  whilst  the  magistrate  is  a  judge  only 
by  popular  election  or  appointment  by  the  head  of 
the  State.  So  that  any  one  who  has  entered  on  his 
civil  and  political  rights,  and  is  of  the  necessary  age, 


PRACTICAL  REFORMS.  l8l 

ought,  according  to  the  spirit  of  the  institution,  to 
administer  justice  on  every  civil  or  criminal  question, 
whatever  its  importance,  and  not  only  in  giving  the 
final  verdict,  but  also  in  conducting  the  trial.  Yet 
not  only  is  the  ancient  trial  by  popular  assemblies 
impossible  in  the  great  States  of  our  day,  but  also 
faith  in  the  omniscience  of  the  people  has  not  availed 
to  prevent  all  kinds  of  limitations  in  the  principle  of 
the  jury.  Thus  the  political  principle  of  the  jury  is 
such  that  it  cannot  be  realised  without  misapprehen- 
sion, limitation,  and  depreciation. 

In  fact,  even  in  England,  where  the  jury  can  of  its 
own  motion  declare  in  the  verdict  its  opinions,  stric- 
tures, and  suggestions  of  reform,  as  arising  out  of 
the  trial,  it  is  always  subject  to  the  guidance  of  the 
judge,  and  it  is  not  employed  in  the  less  serious  and 
most  numerous  cases,  on  which  the  whole  decision  is 
left  to  magistrates,  who  apparently  are  not  to  be 
trusted  to  decide  upon  crimes  of  a  graver  kind. 

And  as  for  the  other  political  advantages  of  the 
jury,  experience  shows  us  that  the  jury  is  often  more 
injurious  than  serviceable  to  liberty. 

In  the  first  place,  in  continental  States  the  jury  is 
but  an  institution  artificially  grafted,  by  a  stroke  of 
the  pen,  on  the  organism  of  the  law,  and  has  no  vital 
connection  or  common  roots  with  this  and  other 
social  organisms,  as  it  has  in  England.  Also  the 
e^cample  of  classical  antiquity  is  opposed  to  the  in- 
stitution of  the  jury,  which  has  been  imposed  upon 
Us  by  eager  imitation  and  political  symmetry  ;  for  if 
the  jury  had  disappeared  amongst  continental  nations, 
this  simply  means  that  it  did  not  find  in  the  ethnic 


102  CRIMINAL   SOCIOLOGY, 

types,  the  manners  and  customs,  the  physical  and 
social  environments  of  these  nations,  an  adequate 
supply  of  vitality,  such  as  it  has  retained,  for  instance, 
through  so  many  historical  changes,  amongst  the 
Anglo-Saxons. 

And  if  sometimes  the  jury  can  withstand  the  abuses 
of  government,  still  too  frequently  it  does  not  with- 
stand its  own  passions,  or  the  influence  of  the  social 
class  (the  bourgeoisie  in  our  own  day),  to  which  nearly 
all  juries  belong.  It  is  notorious,  in  fact,  that  the 
jury  is  more  rigorous  in  regard  to  prisoners  accused 
of  crimes  against  property  than  in  regard  to  those 
accused  of  crimes  against  the  person,  especially 
crimes  instigated  by  personal  motives  such  as  hate, 
vengeance,  or  the  like  ;  for  every  juryman  thinks  that 
he  himself  might  be  a  victim  of  the  exploits  of  a 
thief,  or  the  attacks  of  a  murderer  for  the  sake  of 
gain  ;  whereas  there  is  less  reason  to  fear  a  murder 
provoked  by  vengeance,  an  outrage,  an  embezzlement 
of  public  money,  or  the  like.  And  Macchiavelli  said 
that  men  would  rather  have  blood  drawn  from  their 
veins  than  money  from  their  pockets. 

Besides,  the  same  jury  which  will  resist  pressure 
from  the  Government  does  not  resist  popular  pressure, 
direct  or  indirect,  especially  in  view  of  the  secrecy  of 
their  individual  votes.  No  doubt  there  are  noble  ex- 
ceptions ;  but  society  is  made  up  of  average  virtues, 
and  only  upon  them  can  it  count.^ 

And  when  it  is  continually  asserted,  in  the  words 

*  In  Dublin,  for  the  trial  of  the  murderers  of  Burke  and  Lord 
Frederick  Cavendish,  in  1883,  the  empanelling  of  the  jury  was  very 
difficult,  for  nobody  was  willing  to  expose  himself  to  the  vengeance  ol 
the  fanatics. 


PRACTICAL  REFORMS.  1 83 

of  Joufifroy,  that  the  jury  is  an  outpost  of  liberty,  or 
in  those  of  Carrara,  that  it  is  its  necessary  comple- 
ment, we  have  to  remark  that  this  would  be  true  if 
the  jury  were  instituted  by  a  despotic  government ; 
but  when  popular  liberties  have  far  more  effectual 
guarantees  in  the  political  organisation  of  the  State, 
then  this  quality  of  the  jury  is  more  apparent  than  real. 

In  fine,  either  the  government  is  despotic,  and  then 
juries  are  not  strong  enough  to  preserve  liberty,  as  in 
England  from  the  time  of  Henry  VIII.  to  that  of 
James  II.;  or,  as  Mittermaier  said,  "when  authority 
is  corrupt,  and  the  judge  is  cowardly  or  terrorised,  a 
jury  cannot  assist  in  the  defence  of  liberty."  Or  else 
the  government  is  liberal,  and  then  the  judges  also 
are  independent,  so  that  there  is  no  need  ot  juries, 
especially  with  the  guarantees  of  their  independence 
which  I  have  already  indicated. 

Now  history  reminds  us  that  the  jury  is  never 
instituted  by  despotic  governments.  It  was  refused, 
for  instance,  in  upper  Italy  by  Napoleon  in  181 5,  in 
Naples  by  the  Bourbons  in  1820,  in  Lombardy  by 
Austria  in  1849,  and  in  our  own  day  in  Russia,  for 
political  crimes,  though  it  is  allowed  for  ordinary 
crimes. 

Thus  the  jury,  as  a  political  and  liberal  institution, 
is  oddly  destined  to  be  excluded  when  it  would  be 
serviceable,  and  to  be  useless  when  it  is  admitted.  It 
reminds  us  of  the  destiny  of  the  National  Guard. 

But,  even  in  England,  the  jury  is  regarded  as 
especially  a  legal  institution  ;  and  the  main  qualities 
attributed  to  it  in  this  connection  are  moral  judg- 
ment and  private  conviction. 


184  CRIMINAL   SOCIOLOGY. 

The  law,  we  are  told,  has  always  a  certain  harsh- 
ness and  insufficiency,  for  it  ought  to  provide  for  the 
future  whilst  grounding  itself  on  the  past,  whereas  it 
cannot  foresee  all  possible  cases.  Progress  is  so  rapid 
and  manifold,  in  modern  society,  that  penal  laws 
cannot  keep  pace  with  it,  even  though  they  are  fre- 
quently recast — as  for  instance  in  Bavaria,  which  in 
one  century  has  had  three  penal  codes,  and  in 
France,  where  an  almost  daily  accumulation  of 
special  laws  is  piled  upon  the  original  text  of  the 
most  ancient  code  in  Europe. 

The  jury,  by  its  moral  judgment,  corresponding  in 
some  degree  to  the  equity  of  the  ancients,  is  able  to 
correct  the  sumnium  Jus  with  verdicts  superior  to  the 
written  law.  And,  in  addition,  the  jury  always  fol- 
lows its  private  conviction,  the  inspiration  of  senti- 
ment, the  voice  of  the  conscience,  pure  instinct,  in 
place  of  the  stern  and  artificial  maxims  of  the  trained 
lawyer. 

I  do  not  deny  these  qualities  of  the  jury ;  but  I 
very  much  suspect  that  they  are  serious  and  dan- 
gerous vices  rather  than  useful  qualities  in  a  legal 
institution. 

In  the  first  place,  I  believe  that  the  distinction  of 
powers  or  social  functions,  corresponding  to  the 
natural  law  of  division  of  labour,  ought  not  to  be 
destroyed  by  the  jury.  The  duty  of  the  judicial 
power,  before  everything  else,  is  to  observe  and  apply 
the  written  law;  for  if  we  once  admit  the  possibility 
that  the  judge  (popular  or  trained)  has  to  amend  the 
law,  all  guarantee  of  liberty  is  lost,  and  the  authority 
of  the  individual  is  unlimited.     As  I  have  said  above, 


PRACTICAL   REFORMS.  185 

we  allow  the  authority  of  the  judge  only  when  we 
have  actual  guarantees  of  his  capacity  and  inde- 
pendence, and  always  within  the  limits  of  the  general 
precepts  of  the  law,  and  under  the  control  of  a 
superior  disciplinary  power. 

But  the  omnipotence  of  the  jury,  liberated  from  all 
reasonable  regulation,  with  no  directing  motives  for 
its  verdict,  and  no  possibility  of  control,  is  a  two- 
edged  blade,  which  may  sometimes  improve  upon  the 
law,  or  at  least  usefully  indicate  to  the  legislator  the 
tendencies  of  public  opinion  in  regard  to  a  particular 
crime.  But  it  may  also  violate  the  law,  and  the  liberty 
of  the  individual,  and  then  we  pay  too  dear  for  the 
slight  advantage  which  the  jury  can  confer,  and  which 
might  be  replaced  by  other  manifestations  of  public 
opinion.  In  any  case,  as  Bentham  said,  it  is  better 
to  have  our  remedy  in  the  law  than  in  the  subversion 
of  the  law. 

As  for  private  conviction,  we  willingly  admit  that 
no  system  of  legal  proof  is  acceptable.  But  it  is  one 
thing  to  substitute  for  the  legal  and  artificial  assur- 
ance of  the  law  the  assurance  of  the  judge  who  tries 
'  the  case,  and  quite  another  thing  to  substitute  for 
conviction  founded  on  argument,  and  for  a  critical 
examination  of  the  evidence  collected  during  the 
trial,  the  blind  and  simple  promptings  of  instinct  or 
sentiment. 

Even  apart  from  technical  notions,  which  we  con- 
sider necessary  to  the  physio-psychological  trial  of 
any  accused  person,  social  justice  certainly  cannot  be 
dispensed  through  the  momentary  and  unconsidered 
impressions  of  a  casual  juryman.     If  a  criminal  trial 


l86  CRIMINAL   SOCIOLOGY. 

consisted  of  the  simple  declaration  that  a  particular 
action  was  good  or  bad,  no  doubt  the  moral  con- 
sciousness of  the  individual  would  be  sufficient ;  but 
since  it  is  a  question  of  the  value  of  evidence  and  the 
examination  of  objective  and  subjective  facts,  moral 
consciousness  does  not  suffice,  and  everything  should 
be  submitted  to  the  critical  exercise  of  the  intellect. 

To  the  instinctive  blindness  of  the  judgment  of 
juries  we  must  add  their  irresponsibility. 

No  doubt  if  the  legislator  required  from  all  judges 
a  simple  Yes  or  No,  then  perhaps  the  jury  would  be 
as  good  as  the  magistrate.  But  instead  of  the  unex- 
plained verdict  which  Carmignani  called  "the  method 
of  the  cadi,"  we  are  of  opinion  that  there  should 
always  be  substituted  a  sentence  based  on  reasons 
and  capable  of  control,  especially  in  the  positive 
system  of  criminal  procedure,  which  demands  from 
the  judge  an  acquaintance  with  anthropology  and 
criminal  sociology,  and  from  his  sentence  the  ele- 
ments necessary  to  the  subsequent  treatment  of  the 
convict,  in  agreement  with  the  characteristics  of  his 
individuality  and  of  his  crime. 

But  not  only  is  the  jury  devoid  of  the  qualities 
attributed  to  it ;  it  has  a  fatal  defect,  which  alone  is 
sufficient  to  condemn  this  institution  of  the  law. 

In  the  first  place,  it  is  not  easy  to  understand  how 
a  dozen  jurymen,  selected  at  hazard,  can  actually 
represent  the  popular  conscience,  which  indeed  fre- 
quently protests  against  their  decisions.  In  any  case, 
the  fundamental  conception  of  the  jury  is  that  the 
mere  fact  of  its  belonging  to  the  people  gives  it  the 
right  to  judge  ;  and  as  the  ancient  assemblies  are  no 


PRACTICAL  REFORMS.  187 

longer  possible,  the  essence  of  the  jury  is  that  chance 
alone  must  decide  the  practical  exercise  of  this 
popular  prerogative. 

Now  these  two  conceptions  of  the  jury  are  in 
manifest  contradiction  with  the  universal  rule  of 
public  and  private  life,  that  social  functions  should 
be  exercised  by  persons  selected  as  most  capable. 

Thus  in  everyday  life  we  all  require  of  every 
labourer  the  work  of  which  he  is  more  particularly 
capable.  No  one  would  dream,  for  instance,  of 
having  his  watch  mended  by  a  cobbler.  The  ad- 
ministration of  criminal  justice,  on  the  contrary, 
is  demanded  of  any  one  we  chance  to  come  across, 
be  he  grocer  or  man  of  independent  means,  painter 
or  pensioner,  who  may  never  in  his  life  have  witnessed 
a  criminal  trial ! 

The  irregularity  of  our  statutes  corresponds  to  the 
incapacity  of  individual  jurymen  ;  for  it  is  evident 
that  we  cannot  impose  the  rigorous  process  of  a 
special  mode  of  procedure  on  the  first-comer.  And 
the  law  heightens  the  absurdity  by  plainly  declaring 
that  juries  must  give  their  decision  without  regard  to 
the  consequences  of  their  verdict !  "  Jurymen  fail 
in  their  highest  duty  when  they  have  regard  to  the 
penal  law,  and  consider  the  consequences  which  their 
verdict  may  have  upon  the  accused  "  (Article  342  of 
the  French  code  of  criminal  procedure). 

.  That  is  to  say,  criminal  justice  should  be  based 
on  the  neglect  of  the  elementary  rule  of  justice, 
according  to  which  every  man  ought  always  to  con- 
sider the  possible  consequences  of  his  actions.  And 
the  criminal  law  demands  from  juries  this  proof  of 


1 88  CRIMINAL   SOCIOLOGY. 

their  blindness  Cwhich  is  fortunately  impossible)  that 
they  should  judge  blindfold,  with  no  regard  for  the 
prisoner,  or  for  the  consequences  which  their  verdict 
may  have  upon  him. 

It  was  impossible  that  the  advocates  of  the  jury 
should  fail  to  see  the  absurdity  of  these  principles ; 
and  they  have  been  compelled  to  slur  them  over,  at 
any  rate  in  ordinary  practice. 

In  respect  of  the  composition  of  juries,  restrictions 
have  been  introduced,  by  means  of  lists  of  eligible 
persons,  selection  by  lot,  the  optional  exclusion  of  a 
certain  number  of  jurymen  by  the  public  prosecutor 
and  the  defence,  &c.  All  these  expedients,  however, 
some  of  which  are  imposed  by  necessity,  can  only 
insure  a  general  and  presumptive  capacity,  for  they 
have  the  merely  negative  effect  of  contributing  to 
exclude  the  most  manifest  moral  or  intellectual 
incapacity.  But  the  only  capacity  which  is  neces- 
sary in  a  judge,  which  is  a  special  and  positive 
capacity,  is  not  guaranteed  by  these  restrictions, 
which,  after  all,  are  a  negation  of  the  very  principle 
of  the  jury. 

And  even  if  the  jury  were  always  composed  of 
persons  of  adequate  capacity,  it  would  still  be  con- 
demned by  two  inevitable  arguments  of  human 
psychology. 

First,  the  assembling  of  several  individuals  of 
typical  capacity  never  affords  a  guarantee  of  collec- 
tive capacity,  for  in  psychology  a  meeting  of 
individuals  is  far  from  being  equivalent  to  the 
aggregate  of  their  qualities.  As  in  chemistry  the 
combination   of   two    gases   may   give   us   a   liquid 


PRACTICAL  REFORMS.  189 

SO  in  psychology  the  assembling  of  individuals  of 
good  sense  may  give  us  a  body  void  of  good  sense. 
This  is  a  phenomenon  of  psychological  fermentation, 
by  which  individual  dispositions,  the  least  good  and 
wise,  that  is  the  most  numerous  and  effective, 
dominate  the  better  ones,  as  the  rule  dominates  the 
exceptions.  This  explains  the  ancient  saying,  "  The 
senators  are  good  men,  but  the  Senate  is  a  mis- 
chievous animal." 

And  this  fact  of  collective  inferiority,  not  to  say 
degeneracy,  is  observed  in  casual  assemblies,  such  as 
juries,  meetings,  and  the  like,  far  more  than  in  organ- 
ised and  permanent  councils  of  judges,  experts,  &c. 

Secondly,  the  jury,  even  when  composed  of  persons 
of  average  capacity,  will  never  be  able  in  its  judicial 
function  to  follow  the  best  rules  of  intellectual 
evolution. 

Human  intelligence,  in  fact,  both  individual  and 
collective,  displays  these  three  phases  of  progressive 
development :  common  sense,  reason,  and  science, 
which  are  not  essentially  different,  but  which  differ 
greatly  in  the  degree  of  their  complexity.  Now  it 
is  evident  that  a  gathering  of  individuals  of  average 
capacity,  but  not  technical  capacity,  will  in  its 
decisions  only  be  able  to  follow  the  rules  of  common 
sense,  or  at  most,  by  way  of  exception,  the  rules  of 
reason — that  is,  of  their  common  mental  habits, 
more  or  less  directed  by  a  certain  natural  capacity. 
But  the  higher  rules  of  science,  which  are  still  in- 
dispensable for  a  judgment  so  difficult  as  that  which 
bears  on  crimes  and  criminals,  will  always  be  un- 
known to  it. 
14 


I  go  CRIMINAL   SOCIOLOGY. 

As  for  the  irregularity  of  the  action  of  a  jury,  it 
has  been  deemed  that  this  can  be  provided  against 
by  the  formal  distinction  between  a  decision  of  fact 
and  a  decision  of  law,  in  obedience  to  the  advice 
of  Montesquieu,  that  "  to  the  popular  judgment  we 
should  submit  a  single  object,  a  fact,  a  single  fact." 

But  without  dwelling  on  the  remark  of  Hye- 
Glunek,  that  in  this  way  the  legal  problem,  which 
ought  to  be  as  indivisible  as  the  syllogism  which 
creates  it,  is  cut  into  two  parts,  it  is  evident  that 
Cambaceres  was  amply  justified  in  saying,  in  the 
Council  of  State,  that  the  separation  of  fact  from  law 
is  a  fallacy. 

In  fine,  not  only  under  the  positive  system  of 
criminal  procedure,  which  demands  of  the  judge,  in 
addition  to  legal  conceptions  of  crime,  some  anthropo- 
logical and  sociological  knowledge  of  criminals,  but 
even  at  the  present  day  it  is  more  correct  to  say  that 
the  jury  is  concerned  with  the  crime — that  is,  in  the 
words  of  Binding,  with  a  legal  fact,  and  not  merely 
a  material  fact ;  whilst  the  judge  is  concerned  with 
the  punishment.  Thus,  in  the  Assize  Court,  the 
separation  of  the  judgments  is  not  between  fact  and 
law,  but  only  between  the  crime  and  the  punish- 
ment 

Even  admitting  the  possibility  of  this  separation 
'of  fact  and  law,  logic  and  experience  have  already 
belied  the  assertion  of  those  who  say  with  Beccaria 
that, "  for  the  appreciation  of  facts,  ordinary  intelli- 
gence is  better  than  science,  common  sense  better 
than  the  highest  mental  faculties,  and  ordinary  train- 
insj  better  than  scientific." 


PRACTICAL  REFORMS.  IQI 

On  the  contrary,  a  criminal  trial  is  not  only  con- 
cerned with  the  direct  perception  of  facts,  but  also 
and  especially  with  their  critical  reconstruction  and 
psychological  appreciation.  In  civil  law  the  fact  is 
really  accessory,  and  both  sides  may  be  agreed  in  its 
exposition,  whilst  disputing  about  the  application  of 
the  law  to  this  fact.  But  in  criminal  justice  the  fact 
is  the  principal  element,  and  it  is  not  merely  neces- 
sary to  admit  or  to  decide  upon  this  or  that  detail, 
but  we  have  also  to  regard  its  causes  and  effects, 
from  the  individual  and  the  social  point  of  view, 
without  speaking  of '  the  common  difficulty  of  a 
critical  and  evidential  appreciation  of  a  mass  of 
significant  circumstances.  So  that,  as  Ellero  said, 
in  a  criminal  trial  the  decision  as  to  fact  is  far  more 
difficult  than  that  as  to  law.  And  by  this  time  daily 
practice  has  accumulated  so  many  proofs,  more  or 
less  scandalous,  of  the  incapacity  of  the  jury  even  to 
appreciate  facts,  that  it  is  useless  to  dwell  upon 
them. 

To  conclude  this  question  of  the  jury,  it  remains 
to  speak  of  its  defects,  which  are  not  the  more  or  less 
avoidable  consequences  of  a  more  or  less  fortunate 
application  of  the  principle,  which  might  be  the  case 
with  any  social  institution,  but,  on  the  contrary,  are 
an  inevitable  consequence  of  the  laws  of  psychology 
an^  sociology. 

(So  far  as  science  is  concerned,  a  fact  exists  in 
connection  with  a  general  law)  For  common  sense, 
on  the  other  hand,  the  actuality  of  the  particular  fact 
is  the  only  matter  of  concern.  Hence  the  inevitable 
tendency  of  the  jury  to  be  dominated  by  isolated 


192  CRIMINAL   SOCIOLOGY. 

facts,  with  no  other  guide  than  sentiment,  which, 
especially  in  southern  races,  confines  all  pity  to  the 
criminals,  whilst  the  crime  and  its  victims  are  all  but 
forgotten.  The  very  keenness  of  sentiment  which 
would  urge  the  people  to  administer  "summary 
justice "  on  the  criminal,  when  surprised  in  the  fact, 
turns  entirely  in  his  favour  when  he  is  brought  up 
at  the  assizes,  with  downcast  mien,  several  months 
after  the  crime.  Hence  we  obtain  an  impassioned 
and  purblind  justice. 

And  the  predominance  of  sentiment  over  the 
intelligence  of  the  jury  is  revealed  in  the  now 
incurable  aspect  of  judicial  discussions.  There  is 
no  need  and  no  use  for  legal  and  sociological  studies 
and  for  technical  knowledge ;  the  only  need  is  for 
oratorical  persuasiveness  and  sentimental  declama- 
tions. Thus  we  have  heard  an  advocate  telling  a 
jury  that,  "in  trials  into  which  passion  enters,  we 
must  decide  with  passion."  Hence,  also,  the  deterio- 
ration of  science  in  the  Assize  Courts,  and  its  faulty 
application,  and  its  completely  erroneous  conse- 
quences. 

Moreover,  the  verdict  of  the  jury  cannot  represent 
the  sum  of  spontaneous  and  individual  convictions — 
not  only  in  countries  where  juries  are  exposed  to 
all  kinds  of  influences  during  the  adjournments  of 
the  discussion,  but  even  in  England,  where  unanimity 
is  required,  and  where  all  communication  of  the  jury 
with  the  outer  world  is  forbidden  until  the  end  of  the 
trial.  For  in  every  case  the  influence  of  the  most 
intriguing  or  most  respected  jurymen  in  the  jury's 
room  is  always   inevitable.      So  that  we  have  even 


PRACTICAL  REFORMS.  I93 

had  irresponsible  suggestions  of  public  deliberation 
on  the  part  of  the  jury. 

Against  these  defects  of  the  jury  its  advocates  have 
set  an  objection  in  regard  to  the  trained  judge, 
namely  that  the  habit  of  judging  crimes  and  offences 
irresistibly  inclines  the  judge  to  look  upon  every 
prisoner  as  guilty,  and  to  extinguish  the  presumption 
of  innocence  even  in  cases  where  it  would  be  most 
justified. 

This  objection  has  really  a  psychological  basis ; 
for  the  conversion  of  the  conscious  into  the  uncon- 
scious, and  the  polarisation  of  the  intellectual  faculties 
and  dispositions,  are  facts  of  daily  observation,  deter- 
mined by  the  biological  law  of  the  economy  of  force. 
But  it  is  not  sufficient  to  make  us  prefer  juries  to  judges. 

In  addition  to  the  fact  that  this  mental  habit  of 
judges  may  be  counteracted  by  a  better  selection  of 
magistrates  under  the  reforms  which.  I  have  indicated, 
it  is  to  be  observed  that  this  presumption  of  inno- 
cence, as  we  have  seen,  is  not  so  absolute  as  some 
would  have  us  believe,  especially  in  case  of  a  trial 
which  follows  upon  a  series  of  inquiries  and  proofs  in 
the  preliminary  hearing. 

Again,  this  tendency  of  judges  is  restrained  and 
corrected  by  the  publicity  of  the  discussions.  And 
all,  or  nearly  all,  the  famous  and  oft-repeated  in- 
stances of  judicial  errors  go  back  to  the  time  of  the 
inquisitorial  and  secret  trial — in  regard  to  which  an 
interesting  historical  problem  presents  itself ;  that  is 
to  say  the  co-existence  of  the  inquisitorial  trial,  which 
impairs  every  individual  guarantee,  with  the  political 
liberties  of  the  mediaeval  Italian  republics. 


194  CRIMINAL   SOCIOLOGY. 

This  is  why  the  number  of  acquittals,  and  of  the 
admission  of  extenuating  circumstances,  is  always 
very  remarkable,  even  in  the  Correctional  Tribunals, 
which  in  Italy  show  proportions  not  greatly  differing 
from  those  of  the  Assize  Courts. 

We  must  remember  that,  under  our  modern  penal 
procedure,  it  is  not  the  individual  guarantees  that 
are  lacking,  such  as  the  assigning  of  reasons  for  the 
sentence,  the  almost  total  abolition  of  punishments 
which  cannot  be  reconsidered,  appeals,  reversals, 
revision,  which  would  be  still  more  efficacious  under 
the  positive  system  which  we  propose. 

One  logical  consequence  of  the  psychological  objec- 
tion raised  against  judges  would  be  the  granting  of  a 
jury  even  in  the  Correctional  Tribunals,  though  the 
experience  which  we  have  of  it  in  the  Assize  Courts 
is  not  so  encouraging  as  to  leave  many  advocates  of 
a  jury  in  the  minor  courts. 

But  a  decisive  objection,  founded  on  the  most  posi- 
tive data  of  sociology,  can  be  raised  against  the  jury. 

The  law  of  natural  evolution  proves  that  no  varia- 
tion in  the  vegetable  or  animal  organism  is  useful  or 
durable  which  is  not  the  outcome  of  a  slow  and 
gradual  preparation  by  organic  forces  and  external 
conditions.  Thus  an  organ  which  ceases  to  have  a 
function  to  discharge  is  subject  to  atrophy,  and  no 
new  organ  is  possible  or  capable  of  development  if 
it  is  not  required  by  a  new  function  to  which  it 
corresponds. 

What  has  been  said  of  organic  variations  is  also 
true  of  social  institutions.  And  when  the  jury  is 
contemplated   from  this   point  of  view,  we  see  that 


PRACTICAL   REFORMS.  IQS 

it  has  been  artificially  grafted  by  a  stroke  of  the 
legislator's  pen  on  the  judicial  institutions  of  the 
continent,  without  the  long-continued,  spontaneous 
and  organic  connections  which  it  had,  for  instance, 
with  the  English  people.  The  jury  had  even  dis- 
appeared from  the  continental  countries  in  which  it 
had  left  traces  of  former  existence  ;  for  it  had  not 
found  in  the  race-characteristics  or  the  social  organism 
that  favourable  environment  which  is  supplied  in 
England  by  the  natural  groundwork  of  institutions 
and  principles  which,  as  Mittermaier  says,  are  its 
necessary  correlative. 

The  jury,  as  it  has  been  politically  established  on 
the  continent  of  Europe,  is  what  Spencer  calls  a  false 
membrane  in  the  social  organism,  having  no  physio- 
logical connection  with  the  rest  of  the  body  politic. 
So  that  it  is  not  yet  acclimatised,  even  in  France,  after 
a  century  of  uninterrupted  trial.^ 

As  for  the  other  bio-sociological  law,  of  single 
organs  for  single  functions,  it  seems  to  me  that  if  in 
England  the  jury  and  the  magistracy  have  been 
developed  side  by  side  and  interwoven,  this  is  only  a 
case  of  organic  integration.     But  on  the  continent,  as 

'  The  actual  state  of  the  law  in  Europe,  so  far  as  regards  the  jury  for 
common  crimes  and  offences,  is  as  follows : — England,  Scotland, 
Ireland,  and  Switzerland  have  the  jury  for  assizes  and  courts  of  first 
instance.  France,  Italy,  Cisleithan  Austria,  Istria,  Dalmatia,  Rhenish 
Prussia,  Alsace-Lorraine,  Bavaria,  Bohemia,  Gallicia,  Belgium,  Rou- 
qiania,  Greece,  Portugal,  Russia,  and  Malta,  have  the  criminal  jury 
only.  Spain  had  suspended  it,  but  restored  it  in  1888.  Prussia, 
Saxony,  Baden,  Wurtemberg,  have  the  criminal  jury  and  echevins 
(bodies  of  citizens  sitting  with  the  judges)  for  correctional  and 
police  cases.  Denmark,  Sweden,  and  Finland,  have  the  echevins. 
Holland,  Norway,  Hungary,  Slavonia,  Poland,  Servia,  and  Turkey, 
have  neither  juries  nor  ec/ievins. 


196  CRIMINAL   SOCIOLOGY. 

the  jury  has  been  added  artificially  to  the  magistracy, 
this  is  on  the  other  hand  a  genuine  example  of  non- 
natural  growth. 

And  if  it  be  said  that  the  jury,  as  an  advance  from 
the  homogeneous  to  the  heterogeneous,  indicates  a 
higher  degree  of  social  evolution,  we  must  draw  a 
distinction  between  differentiations  which  amount  to 
evolution  and  those  which,  on  the  contrary,  are 
symptoms  of  dissolution.  Division  of  labour,  phy- 
siological or  social,  is  a  true  evolutionary  differentia- 
tion ;  whilst  modifications  introduced  by  a  disease  in 
the  animal  organism,  or  by  a  revolt  in  the  social 
organism,  are  but  the  beginning  of  a  more  or  less 
extended  dissolution. 

Now  the  jury  belongs  to  the  domain  of  social 
pathology,  for  it  is  essentially  contrary  to  the  law  of 
the  specialisation  of  functions,  according  to  which 
every  organ  which  becomes  more  adapted  to  a  given 
task  is  no  longer  adapted  to  any  other.  It  is  only  in 
the  lower  organisms  that  the  same  tissue  or  organ 
can  perform  different  functions,  whilst  in  the  verte- 
brates the  stomach  can  only  serve  for  digestion, 
the  lungs  for  oxygenation,  and  so  on.  Similarly  in 
primitive  societies,  each  individual  is  soldier,  hunter, 
tiller  of  the  soil,  &c.,  whilst  with  the  progress  of  social 
evolution  every  man  performs  his  special  function, 
and  becomes  unfitted  for  other  labours.  In  the  jury 
we  have  a  return  to  the  primitive  confusion  of  social 
functions,  by  giving  to  any  chance  comer,  who  may 
be  an  excellent  labourer,  or  artist,  a  very  delicate 
judicial  function,  for  which  he  has  no  capacity  to-day, 
and  will  have  no  available  experience  to-morrow. 


PRACTICAL   REFORMS.  I97 

In  modern  societies,  to  tell  the  truth,  there  is 
another  function  assigned  to  all  citizens,  outside  of 
their  special  capacity,  and  that  is  the  electoral  duty. 
But  the  cases  are  very  different.  The  franchise  does 
not  demand  a  labour  so  difficult  and  delicate  as 
critical  judgment,  and  the  reconstruction  of  the  con- 
ditions of  an  act  and  of  its  author.  It  has  no  direct 
influence  on  the  positive  function  of  the  person 
elected,  but  on  the  contrary  it  is  a  confession  of  the 
special  incapacity  of  the  elector  to  do  what  he  intrusts 
to  the  capacity  of  the  person  elected.  The  franchise 
is  but  an  elementary  function  of  the  assimilation  of 
physiological  elements  in  the  social  organism,  which 
in  the  animal  organism  is  performed  by  the  aggregate 
of  living  cells,  and  in  society  by  the  aggregate  of 
individuals,  not  being  idiots  or  criminals,  who  possess 
the  minimum  of  social  energy. 

Far  different  is  the  administration  of  criminal 
justice,  a  technical  and  very  noble  function,  which 
has  nothing  in  common  with  the  elementary  function 
of  the  franchise.  I  could  not  indeed  agree  with  the 
assertion  of  Carrara,  who  thought  it  a  contradiction 
to  deny  to  the  people  any  participation  in  the 
exercise  of  the  judicial  authority  when  they  are 
allowed  to  participate  in  the  exercise  of  legislative 
authority.  In  the  first  place,  the  people  have  but  a 
very  indirect  share  in  the  legislative  function,  and, 
even  where  the  referendum  exists,  very  useful  as  I 
believe  it  to  be,  the  people  have  only  a  simple,  almost 
negative  function,  to  say  Yes  or  No  to  a  law  which 
they  have  not  made,  and  would  have  had  no  technical 
ability  to  make.    Thus  the  argument  of  Carrara  could 


198  CRIMINAL   SOCIOLOGY. 

only  lead  to  the  popular  election  of  judges,  as  of 
legislators,  and  to  a  control  by  the  people  of  the 
administrative  action  of  the  judges  when  elected. 
No  doubt  this  would  have  theoretical  advantages, 
though  in  my  opinion  it  would  raise  practical  diffi- 
culties, especially  in  nations  which  do  not  possess 
a  very  keen  conscience  and  political  activity,  after 
enfeeblement  by  centuries  of  despotism,  or  of  political 
and  administrative  tutelage  and  centralisation. 

The  jury,  then,  is  a  retrogressive  institution,  as 
shown  by  history  and  sociology,  for  it  represents  the 
mediaeval  and  instinctive  phase  of  criminal  justice. 
It  has,  indeed,  a  few  advantages  (there  is  always  a 
certain  profit  in  misfortune),  especially  when  it 
operates  on  the  final  outcome  of  the  classical  theories 
— bringing  to  bear,  for  instance,  an  irresistible  force 
against  repeated  theft,  or  murders  committed  at  the 
instigation  of  others.  And  it  has  sometimes  drawn 
attention  to  necessary  penal  reforms,  after  accepting 
certain  conclusions  of  the  positive  school,  such  as  the 
acquittal  of  criminals  of  passion,  and  political  prisoners, 
or  a  greater  severity  towards  habitual  criminals. 

But  the  only  possible  conclusion  from  the  foregoing 
criticisms  is  that  the  jury  should  be  abolished  for  the 
trial  of  common  crimes,  a/Ur  the  introduction  of 
reforms  which  would  ensure  the  capacity  and  inde- 
pendence of  the  judges. 

Meanwhile,  since  it  is  much  easier  to  establish  a 
new  social  institution  than  to  abolish  one,  it  is  worth 
while  to  indicate  the  principal  and  most  urgent  re- 
forms which  should  be  made  in  the  jury  systern,  so 


PRACTICAL   REFORMS.  igg 

as  to  eliminate  its  more  serious  and  frequent  dis- 
advantages. 

The  theoretical  distinction  of  the  classical  school 
between  ordinary  and  political  crimes  is  not  very 
precise,  for  the  so-called  political  crimes  are  either 
not  crimes  (as  when  they  are  confined  to  the  mani- 
festation of  an  idea),  or  they  are  common  crimes 
which  spring  from  a  lofty  and  social  passion  in 
individuals,  who  have  the  characteristics  of  the 
criminal  by  passion,  or,  in  other  words,  are  but 
quasi-criminals ;  or  else  they  are  common  crimes 
committed  by  ordinary  malefactors,  under  the  pre- 
text of  a  popular  idea.  Instead  of  distinguishing 
crimes,  I  think  we  ought  to  distinguish  between 
ordinary  and  political  criminals,  according  to  their 
determining  motives,  and  the  social  bearings  and 
historical  moment  of  their  acts.  At  the  same  time, 
whilst  our  criminal  laws  retain  this  distinction,  I 
think  it  is  useful  to  keep  the  jury  for  the  trial  of 
political  crimes  and  offences,  and  for  those  connected 
with  the  press  and  with  society  as  a  whole  ;  for  if  in 
these  cases  the  jury  might  yield  to  the  influence  of 
class  interests  and  prejudices  (as  for  instance  in  the 
trial  of  actions  arising  out  of  the  conflict  of  capital 
and  labour),  the  danger  will  still  be  less  than  it  would 
be  with  judges  alone,  who  are  not  sufficiently  inde- 
pendent of  the  executive,  which  in  its  turn  is  but  the 
secular  arm  of  the  dominant  class,  and  which  there- 
fore combines  the  interests  and  prejudices  of  the 
political  order  with  those  of  the  economic  and  moral 
order  which  dominate  the  jury. 

For  common  crimes  it  would  be  necessary  to  with- 


200  CRIMINAL   SOCIOLOGY. 

hold  from  a  jury  the  trial  of  prisoners  who  avow  their 
crime.  The  essence  of  a  trial  by  indictment  is  the 
principle  that  the  discussion  as  to  punishment  is  a 
private  affair,  and  it  has  no  further  ground  for 
existence  when  one  of  the  parties  withdraws  from  the 
duel.  Hence  the  English  mistrust  of  a  prisoner's 
confession  of  guilt,  which  in  the  inquisitorial  trial,  on 
the  other  hand,  is  a  mainstay  of  the  evidence.  Yet  I 
believe  that  in  these  cases  the  Scottish  system  is 
preferable  to  the  English.  In  England  the  judge 
begins  by  asking  the  prisoner  if  he  is  Guilty  or  Not 
Guilty,  and  in  case  of  a  confession  he  passes  sentence 
without  a  verdict  from  the  jury.  In  Scotland,  on  the 
contrary,  the  prosecutor  can  furnish  his  proof,  in  spite 
of  the  confession  of  the  prisoner,  and  demand  a 
verdict  from  the  jury.  In  this  way  it  is  possible  to 
avoid  not  only  a  scandalous  acquittal  of  prisoners 
who  have  confessed  their  guilt  (as  happens  in  Italy, 
France,  and  elsewhere),  but  also  the  danger  that  the 
confession  may  not  be  true,  and  that  an  innocent 
man  may  be  condemned. 

Juries  ought,  moreover,  as  proposed  by  M.  Ellero, 
to  specify  attenuating  circumstances,  on  each  of  which 
a  special  question  ought  to  be  put  to  them. 

The  jury  ought  also  to  have  the  right  of  spon- 
taneously finding  in  a  sense  less  serious  than  that  of 
the  charge,  even  when  no  corresponding  question  has 
been  put  to  them. 

But  at  the  same  time  it  cannot  be  denied  that  these 
would  only  be  palliatives,  more  or  less  efficacious. 

The  only  positive  conclusion  is  that,  whilst  retain- 
ing the  jury  for  crimes  of  the  political  and  social 


PRACTICAL   REFORMS.  201 

order,  we  should  aim  at  its  abolition  for  common 
crimes,  immediately  after  securing  stringent  reforms 
as  to  the  independence  and  capacity  of  the  judges. 

IV. 

It  needs  no  further  demonstration  that  the  modern 
organisation  of  punishment,  based  partly  on  the 
assumption  that  we  can  measure  the  moral  culpability 
of  criminals,  and  partly  on  an  illusion  as  to  their 
general  amendment,  and  almost  entirely  reduced,  in 
consequence,  to  imprisonment  and  the  cell  system, 
has  absolutely  failed  to  protect  society  against  crime. 

Holtzendorff,  one  of  the  best  known  of  the  classical 
school,  frankly  confessed  that  "  the  prison  systems 
have  made  shipwreck."  So  also  in  Italy  we  have 
had  disquisitions  "  on  the  futility  of  repression,"  and 
in  Germany  it  has  been  held  that  "  existing  criminal 
law  is  powerless  against  crime."  Thus  the  necessity 
of  taking  steps  to  counteract  this  failure  is  forced 
upon  us  more  and  more  every  day.  We  must 
proceed  either  by  way  of  legislative  reforms,  as 
effectual  as  we  can  make  them,  but  always  inspired 
by  reaction  against  the  established  prison  system,  or 
by  a  propaganda  on  scientific  lines.  The  most  strik- 
ing form  which  has  been  taken  by  the  latter  process 
is  the  International  Union  of  Penal  Law,  which  in 
1 89 1,  two  years  after  its  foundation,  numbered  nearly 
six  hundred  members  of  various  nationalities,  and 
which  in  the  second  clause  of  its  charter,  in  spite  of 
the  varied  reservations  of  a  few  members,  notably 
supported  the  positive  theories. 

The  defects  of  the  penal  system   inspired  by  the 


202  CRIMINAL  SOCIOLOGY. 

theories  of  the  classical  school  of  criminal  law,  and 
by  the  actual  regulations  of  the  classical  prison  school, 
may  be  briefly  summed  up.  They  are,  a  fallacious 
scale  of  moral  responsibility  ;  absolute  ignorance  and 
neglect  of  the  physio-psychological  types  of  criminals  ; 
intervals  between  verdict  and  sentence  on  the  one 
hand,  and  between  the  sentence  and  its  execution  on 
the  other,  with  a  consequent  abuse  of  pardons ;  dis- 
astrous practical  effects  of  corruption  and  of  criminal 
association  in  prisons  ;  millions  of  persons  condemned 
to  short  terms  of  imprisonment,  which  are  foolish  and 
absurd ;  and  a  continuous,  inexorable  increase  of 
recidivism. 

So  that  the  tribunals  of  Europe,  as  M.  Prins  ob- 
served, with  the  absolute  impersonality  of  modern 
justice,  allow  their  sentences  to  fall  upon  unhappy 
wretches  as  a  tap  allows  water  to  fall  drop  by  drop 
upon  the  ground. 

Without  counting  fines  or  police  detention,  there 
were  sentenced  in  Italy,  in  the  ten  years  1880-89,  to 
various  terms  of  imprisonment,  587,938  persons  by 
the  Pretors,  and  465, 130  by  the  Correctional  Tribunals. 
That  is,  more  than  a  million  terms  in  the  minor 
courts  within  ten  years  ! 

And  the  total  number  sentenced  in  Italy  to  various 
punishments,  by  Pretors,  Tribunals,  and  Assize 
Courts,  in  the  same  ten  years,  was  not  less  than 
3,230,000. 

As  for  recidivism,  without  repeating  the  familiar 
figures  of  its  annual  increase,  it  will  suffice  to  recall 
the  astounding  fact  to  which  I  drew  attention  before 
the  central  Commission  of  Legal  Judicial  Statistics. 


PRACTICAL  REFORMS.  203 

That  is  to  say,  amongst  the  prisoners  condemned  in 
1887  for  simple  homicide,  there  were  224  who  had  been 
already  condemned,  either  /or  the  same  crime  (63),  or 
for  a  crime  mentioned  in  the  same  section  of  the 
penal  code  (181)  ;  and  even  of  those  condemned  for 
qualified  manslaughter,  78  had  already  been  con- 
demned, either  for  the  same  crhne  (8),  or  for  one  of 
like  character. 

In  France  we  have  figures  equally  striking,  for  they 
relate  not  to  the  effect  of  exceptional  conditions,  or 
conditions  peculiar  to  this  or  that  country,  but  to  the 
uniform  consequence  of  the  classical  theories  of 
criminal  law  and  prison  organisation. 

The  total  number  condemned  to  imprisonment  by 
the  French  tribunals,  and  detained  by  the  police,  in 
the  ten  years  1879-88,  was  1,675,000 ;  the  Tribunal 
sentences  under  six  days  being  113,000. 

And  the  total  condemned  to  punishments  of  various 
kinds,  by  Assize  Courts,  Tribunals,  and  police  courts, 
reached  in  the  same  ten  years  the  enormous  number 
of  6,440,000  individuals  ! 

The  meaning  of  this  is  that  penal  justice  at  the 
present  moment  is  a  vast  machine,  devouring  and 
casting  up  again  an  enormous  number  of  individuals, 
who  lose  amongst  its  wheels  their  life,  their  honour, 
their  moral  sense,  and  their  health,  bearing  thenceforth 
the  ineffaceable  scars,  and  falling  into  the  ever-grow- 
ing ranks  of  professional  crime  and  recidivism,  too 
often  without  a  hope  of  recovery.'' 

It  is  impossible,  then,  to  deny  the  urgent  necessity 

'  As  regards  recidivism  and  the  enormous  numbers  tried,  England  is 
in  as  bad  a  position  as  Italy  and  France.  See  my  articles  in  Nineteenth 
Century,  i8q2,  and  Fortnightly  Review,  1894. — Ed. 


204  CRIMINAL   SOCIOLOGY. 

of  substituting  for  our  present  penal  organisation  a 
better  system  corresponding  to  the  governing  condi- 
tions of  crime,  more  effectual  for  social  defence,  and  at 
the  same  time  less  gratuitously  disastrous  for  the 
individuals  with  whom  it  deals. 

The  positive  school,  in  addition  to  the  partial 
reforms  proposed  by  Lombroso,  and  by  myself  in  the 
second  edition  of  this  work,  has  put  forward  in  the 
Cruninology  of  Garofalo  a  "  rational  system  of  punish- 
ment," whereof  it  is  desirable  to  give  a  summary. 

I.  Murderers  (moral  insensibility  and  instinctive 
cruelty)  who  commit — 

Murder  for  greed,  or  other  selfish  \ 

gratification  \  Criminal    Lunatic    Asylums  :    or 

Murder  unprovoked  by  the  victim     /      the  death  penalty. 
Murder  with  attendant  cruelly  ) 

II.  Violent  or  Impulsive  Characters  (de- 
ficiency of  the  sense  of  pity,  with  prejudices  on  the 
subject  of  honour,  on  the  duty  of  revenge,  &c.). 
Adults  who  commit — 

Violent  assault  suddenly  provoked  |  Removal  of  the  offender  from  the 
by  a  cruel  injury  [•     neighbourhood  of  the  victim  or 

Justifiable  homicide  in  self-defence  j      his  family. 

}  Transportation  to  an  island,  colony, 
or  village — at  liberty,  under 
supervision  (for  an  indefinite 
period,  with  from  5  to  10  years' 
supervision). 

t,    r,      .  .  J    .  ,   \  Damages  and  fine :  heavy  for  such 

Bodily  mjury  during  a  quarrel;  ^s  ^n  pay.  Alternative  pen- 
slight  and  transitory  malice;!  alty  :-dcduction  from  wages, 
blows;  threats;  slander;  verbal  f  or  forced  labour.  Imprisonment 
insults  I      •  c     t      \ 

]      in  case  of  refusal. 

Malicious  injury  or  disfigurement ;)  ^■"i'"'"^;  '""^'•",  ""fT  ^^%  ^^^' 
mntilntmn  .  r.n.  or  «,.,r.„.  ^;^K        t^"^"^'^!  or _epileptic),  or  Trans- 


mutilation  ;  rape  or  outrage  with 
violence ;  restraint  on  personal 
liberty 


epti 
portation  for  an  indefinite  period, 
with  supervision  from  5  to  10 
years. 


PRACTICAL  REFORMS.  205 

Young  persons  who  commit — 

1  Criminal     lunatic    asylums    (for 
those   with  congenital  tenden- 
cies). 
Penal  colony  in  case  of  relapse. 
Transportation  without  constraint. 


I  III.  Dishonest  Criminals.    Adults  who  com- 
mit— 

Habitual  theft,  swindling,  incendiar-)  Lunatic  asylums  (if  insane  or  epi- 
ism,  forgery,  extortion  j      leptic).     Transportation. 


(Labour-gangs   (unfixed  periods) ; 
or  suspension  of  right  to  exercise 
a     profession,    until     camplete 
reparation  of  damage. 
# 
Peculation  ;  embezzlement ;  sale  of)  Loss    of    office.      Suspension    of 
offices ;  abuse  of  authority  j      civil  rights.    Fine.    Restitution. 

...  .    ,.    .         ,  "k  Reparation  of  damage  (with  op- 

Incendiarism;    vindictive    destruc- 1      tional  imprisonment).    Criminal 

tion  of  property  (without  personal  Y     j^j^^^j^  ^^^^^^^  (^^  the  insane). 

injury)  j      Transportation  (for  recidivists). 

Bankruptcy,  when  due  to  malprac- 1  Restitution.  Prohibition  to  trade, 
tice  /     or  to  discharge  public  functions. 

Uttering  false  coin  ;  forgery  of  stock  j  Imprisonment  (unfixed  periods) 
and  certificates  ;  personation,  ?  and  fine,  in  addition  to  loss  of 
false  witness,  &c.  '      office,  and  restitution. 

Bigamy,  palming  or  concealment  of  1  ti     •  1.        .  r         r     ■,       •   , 
^jj.tj^    '^  ''  I  Banishment  for  unfixed  penods. 

Young  persons  who  commit — 

_,    ,^       ....        o  )  An  agricultural  colony  (for  unfixed 

Theft,  swindling,  &c  |     periods). 

•IV.  Persons  guilty  of — 

Outbreaks:  resistance  or  disobedi-)  ,        •  .  #<•        /.,.,, 

ence  to  authority  )  Imprisonment  (for  unfixed  penods). 

In  other  words,  the  system  of  repression  proposed 
by  M.  Garofalo  amounts  to  this  : — 
15 


206 


CRIMINAL   SOCIOLOGY. 


Absolute   elimination  of  the  crim- 
inal 


Relative  elimination 


Reparation  of  damages 
Fine  (going  to  the  State) 
Indemnification  of  the  victims 


[  Penalty  of  death. 

Criminal  lunatic  asylum. 
Transportation  with  liberty. 
Perpetual  banishment. 
Banishment  for  various  periods. 
Agricultural  colonies. 
Interdiction     from     a     particula: 
neighbourhood. 

(By  payment  of  money. 
Deduction  from  wages. 
Forced  labour,  without  imprison- 
ment. 


Imprisonment  for  fixed  periods  for  special  offences  (forgery  and  out- 
breaks) ;  or  as  alternative  to  indemnification  or  forced  labour. 
Interdiction  of  certain  professions  and  public  functions. 


M.  Liszt  also,  agreeing  with  the  positive  school  in 
regard  to  the  necessity  of  a  radical  reform  in  the  penal 
system,  yet  with  certain  reservations,  has  propounded 
a  scheme,  which,  however,  as  it  does  not  sufficiently 
consider  various  classes  of  criminals,  whom  he  divides 
merely  into  the  habitual  and  the  occasional,  would 
need  completion,  especially  in  comparison  with  the 
well-reasoned  scheme  of  Garofalo.  M.  Liszt's  system 
is  as  follows  : — 


Punishment  hy  fines. 

In  proportion  to  the  property  of  the^ 
offender — not  alternative  with  im- 
prisonment 

Capable  of  being  worked  out  by 
forced  labour  without  imprison- 
ment 


For  offences  (with  alternative  im- 
prisonment). 

For  contraventions  of  the  law 
(without  imprisonment). 


Conditional  sentences. 

For  first  offenders  condemned  to  im-' 
prisonment,  with  or  without  sure 
ties  for  three  years 


.For    offences    punishable  by   im 
prisonment. 


PRACTICAL   REFORMS.  207 

Imprisonment  (for  an  indeterminate  period,  a  maximum  and  minimum 

being  enacted). 
Separate  confinement — six  weeks  to  two  years. 

House  of  detention  (separate  for]  2  to  15  years  (with  police  super- 
one  year,  then  gradual  relaxa-  \  vision  and  assistance  of  dis- 
tion)  j      charged  prisoners) — or  for  life. 

Indemnifications  (always  as  a  civil  liability)  added  to  other  penalties. 

I  believe,  however,  that  it  is  necessary,  before  laying 
down  practical  and  detailed  schemes,  more  or  less 
complete,  to  establish  certain  general  criteria,  based 
upon  the  anthropological,  physical,  and  social  data  of 
crime,  such  as  may  lead  up  to  a  positive  system  of 
social  defence. 

These  fundamental  criteria,  it  seems  to  me,  can  be 
reduced  to  the  three  following  : — (i)  No  fixity  in  the 
periods  of  segregation  of  criminals ;  (2)  the  social 
and  public  character  of  the  exaction  of  damages  ;  (3) 
the  adaptation  of  defensive  measures  to  the  various 
types  of  criminals. 

I.  For  every  crime  which  is  committed,  the  problem 
of  punishment  ought  no  longer  to  consist  in  ad- 
ministering a  particular  dose,  as  being  proportionate 
to  the  moral  culpability  of  the  criminal  ;  but  it  should 
be  limited  to  the  question  whether  by  the  actual  con- 
ditions (breach  of  law  or  infliction  of  injury)  and  by 
the  personal  conditions  (the  anthropological  type  of 
the  criminal)  it  is  necessary  to  separate  the  offender 
from  his  social  environment  for  ever,  or  for  a  longer 
or  shorter  period,  according  as  he  is  or  is  not  regarded 
as  capable  of  being  restored  to  society,  or  whether  it 
is  sufficient  to  exact  from  him  a  strict  reparation  of 
the  injury  which  he  has  inflicted. 

Under  this  head  there  is  a  radical  contradiction. 


208  CRIMINAL   SOCIOLOGY. 

The  existing  schemes  of  punishment,  differing  in 
their  machinery  (and  out  of  harmony  with  the 
sentence  of  the  judge,  often  even  with  the  terms  of 
the  law),  are  all  based  on  the  principle  of  fixed 
periods  of  punishment,  graduated  into  hundreds  and 
thousands  of  possible  doses,  and  have  regard  far  more 
to  the  crime  than  to  the  criminal.  On  the  other 
hand  we  have  the  positive  system  of  punishment, 
based  on  the  principle  of  an  iinfixed  segregatioti  of  the 
criminal,  which  is  a  logical  consequence  of  the  theory 
that  punishment  ought  not  to  be  the  visitation  of  a 
crime  by  a  retribution,  but  rather  a  defence  of  society 
adapted  to  the  danger  personified  by  the  criminal. 

This  principle  of  unfixed  punishment  is  not  new, 
but  it  is  only  the  positive  theory  which  has  given  it 
system  and  life.  The  idea  of  justice  as  assigning 
punishment  to  a  crime,  measured  out  by  days  and 
weeks,  is  too  much  opposed  to  the  principle  of  the 
indeterminate  sentence  to  allow  it  to  receive  any 
systematic  trial  under  the  sway  of  the  classical  theories. 
There  has  been  only  an  isolated  and  exceptional  use 
of  it  here  and  there,  such  as  the  seclusion  of  mad 
criminals  in  special  asylums,  "  during  her  Majesty's 
pleasure,"  in  England.  Nevertheless,  personal  free- 
dom (which  is  held  to  be  violated  by  seclusion  for 
unfixed  periods)  is  greatly  respected  by  the  English 
people. 

The  fundamental  principle  of  law  is  that  of  a 
restriction  imposed  by  the  necessity  of  social  ex- 
istence. It  is  evident,  therefore,  to  begin  with,  that 
seclusion  for  an  unfixed  period,  as  for  life,  is  in  no 
way  irreconcilable  with  this  principle  of  law,  when 


PRACTICAL   REFORMS.  209 

imposed  by  necessity.  Thus  it  has  been  proposed, 
even  by  the  classical  school,  as  a  mode  of  compensa- 
tion or  adjustment. 

If,  indeed,  we  admit  an  increase  of  punishment 
for  a  first  relapse,  it  is  logical  that  this  increase 
should  be  proportional  to  the  number  of  relapses, 
until  we  come  to  perpetual  seclusion  or  transporta- 
tion, and  even  to  death,  as  under  the  mediaeval  laws. 
So  that  there  are  some  of  the  classical  school  who,  by 
way  of  being  logical  if  not  practical,  and  refusing  to 
admit  progressive  increase,  begin  by  refusing  increase 
in  any  degree,  even  for  a  first  relapse. 

Moreover,  if  the  jurists  agree  in  allowing  condi- 
tional liberation,  before  the  term  assigned  in  the 
sentence,  when  the  prisoner  seems  to  have  given 
proof  of  amendment,  the  natural  consequence,  by 
mere  abstract  logic,  ought  to  be  a  prolongation  of 
punishment  for  the  prisoner  who  is  not  amended,  but 
continues  to  be  dangerous. 

This  is  admitted,  amongst  others,  by  Ortolan, 
Davesies  de  Pontes,  and  Roeder,  who  quote  as 
favourable,  though  only  for  recidivists,  Henke 
Stelzer,  Reichmann,  Mohl,  Groos,  von  Struve,  von 
Lichtenberg,  Getting,  Krause,  Ahrens,  Lucas 
Bonneville,  Conforti,  and  others,  amongst  students 
of  criminality ;  and  Ducpetiaux,  Ferrus,  Thomson, 
Mooser,  Diez,  Valentini,  and  D'Alinge  amongst 
prison  experts. 

After  this  first  period,  the  principle  of  segregation 
for  an  unfixed  term,  as  a  basis  for  the  penal  system, 
has  been  supported  by  Despine,  and  developed  by  a 
few   German   writers.      These    latter    have   insisted 


210  CRIMINAL  SOCIOLOGY, 

especially  on  the  disadvantages  of  the  penal  systems 
inspired  by  the  classical  theories,  though  they  run 
somewhat  to  excess,  like  Mittelstadt,  who  proposed 
the  re-establishment  of  the  brutal  punishment  of 
flogging. 

In  corporal  punishments,  it  is  true,  there  would  be 
a  certain  gain  of  efficaciousness,  particularly  against 
such  hardened  offenders  as  the  born  criminals,  so  that 
there  is  a  reaction  in  favour  of  these  punishments. 
M.  Roncati,  for  instance,  writing  of  prison  hygiene, 
says  that  he  would  be  glad  to  see  "the  maternal 
regime,"  with  its  salutary  use  of  physical  pain  before 
the  child  has  developed  a  moral  sense  ;  and  if 
flogging  is  objectionable,  resort  might  be  had  to 
electricity,  which  is  capable  of  giving  pain  without 
being  dangerous  to  health  or  revolting.  Similarly 
Bain  says  that  the  physiological  theory  of  pleasure 
and  pain  has  a  close  relation  to  that  of  rewards  and 
punishments,  and  that,  as  punishment  ought  to  be 
painful,  so  long  as  it  does  not  injure  the  convict's 
health  (which  imprisonment  is  just  as  likely  to  do), 
we  might  have  recourse  to  electric  shocks,  which 
frighten  the  subject  by  their  mysterious  power,  with- 
out being  repugnant  Again,  the  English  Commis- 
sion of  Inquiry  into  the  results  of  the  law  of  penal 
servitude  declared  in  its  report  that,  *'  In  English 
prisons,  disciplinary  corporal  punishments  (formerly 
the  lash,  then  the  birch)  are  inflicted  only  for  the 
most  serious  offences.  The  evidence  has  shown  that 
in  many  cases  they  produce  good  results." 

Nevertheless  corporal   punishments,   as   the   main 
form  of  repression,  even  when  carried  out  with  less 


PRACTICAL   REFORMS.  211 

barbarous  instruments,  are  too  deeply  opposed  to  the 
sentiment  of  humanity  to  be  any  longer  possible  in  a 
penal  code.  At  the  same  time  they  are  admissible  as 
disciplinary  punishments,  under  the  form  of  cold 
baths,  electric  shocks,  &c.,  all  the  more  because, 
whether  prescribed  by  law  or  not,  they  are  inevitable 
in  prisons,  and,  when  not  regulated  by  law,  give  rise 
to  many  abuses,  as  was  shown  at  the  Stockholm 
Prison  Conference  in  1878. 

I  agree  with  Kirchenheim  that  Dr.  Kraepelin's 
scheme  of  seclusion  for  unfixed  periods  is  more 
practical  and  hopeful.  When  the  measure  of  punish- 
ment is  fixed  beforehand,  the  judge,  as  Villert  says, 
•*  is  like  a  doctor  who,  after  a  superficial  diagnosis, 
orders  a  draft  for  the  patient,  and  names  the  day 
when  he  shall  be  sent  out  of  hospital,  without  regard 
to  the  state  of  his  health  at  the  time."  If  he  is  cured 
before  the  date  fixed,  he  must  still  remain  in  the 
hospital  ;  and  he  must  go  when  the  time  is  up,  cured 
or  not 

Semal  reached  the  same  conclusion  in  his  paper  on 
"  conditional  liberation,"  at  the  second  Congress  of 
Criminal  Anthropology. 

And  this  notion  of  segregation  for  unfixed  periods, 
put  forward  in  1867  for  incorrigible  criminals  by  the 
Swiss  Prison  Reform  Association,  has  already  made 
great  progress,  especially  in  England  and  America, 
since  the  Prison  Congress  of  London  (1872)  discussed 
this  very  question  of  indefinite  sentences,  which  the 
National  Prison  Congress  at  Cincinnati  had  approved 
in  the  preceding  year. 

In  1880  M.  Garofalo  and  I  both  spoke  in  favour  of 


212  CRIMINAL   SOCIOLOGY, 

indefinite  segregation,  though  only  for  incorrigible 
recidivists ;  and  the  same  idea  was  strikingly  sup- 
ported in  M.  Van  Hamel's  speech  at  the  Prison 
Congress  at  Rome  (1885).  The  eloquent  criminal 
expert  of  Amsterdam,  speaking  "  on  the  discretion 
which  should  be  left  to  the  judge  in  awarding  punish- 
ment," made  a  primary  distinction  between  habitual 
criminals,  incorrigible  and  corrigible,  and  occasional 
criminals.  "  For  the  first  group,  perpetual  imprison- 
ment should  depend  on  certain  conditions  fixed  by 
law,  and  on  the  decision  of  the  judge  after  a  further 
inquiry.  For  the  second  group,  the  application  of  an 
undefined  punishment  after  the  completion  of  the 
first  sentence  will  have  to  depend  in  the  graver  cases 
on  the  conditions  laid  down  by  law,  and  in  less 
serious  cases  upon  the  same  conditions  together  with 
the  decision  of  the  judge,  who  will  always  decide 
from  time  to  time,  after  further  inquiry,  as  to  the 
necessity  for  prolonging  the  imprisonment.  For  the 
third  group,  the  judge  will  have  to  be  limited  by  law, 
in  deciding  the  punishment,  by  special  maximums, 
and  with  a  general  minimum." 

The  Prison  Congress  of  Rome  naturally  did  not 
accept  the  principle  of  punishment  for  unfixed 
periods.  More  than  that,  advancing  on  the  classical 
tendency,  it  decided  that  "  the  law  should  fix  the 
maximum  of  punishment  beyond  which  the  judge  may 
not  in  any  case  go ;  and  also  the  minimum,  which 
however  may  be  diminished  when  the  judge  considers 
that  the  crime  was  accompanied  by  extenuating 
circumstances  not  foreseen  by  the  law." 

It  is  only  of  late  years,  in  consequence  of  the  reaction 


PRACTICAL   REFORMS.  213 

against  short  terms  of  imprisonment,  that  the  principle 
of  segregation  for  unfixed  periods  has  been  developed 
and  accepted  by  various  writers,  in  spite  of  the  feeble 
objections  of  Tallack,  Wahlberg,  Lamezan,  von 
Jagemann,  &c. 

Apart,  also,  from  theoretical  discussion,  this  prin- 
ciple has  been  applied  in  a  significant  manner  in  the 
United  States,  by  means  of  the  "  indeterminate 
sentence."  The  House  of  Correction  at  Elmira  (New 
York)  for  young  criminals  carries  into  effect,  with 
special  regulations  of  physical  and  moral  hygiene,  the 
indeterminate  imprisonment  of  young  prisoners  ;  and 
this  principle,  approved  by  the  Prison  Congresses  at 
Atalanta  (1887),  Buffalo  (1888),  and  Nashville  (1889), 
has  been  applied  also  in  the  New  York  prisons,  and  in 
the  States  of  Massachusetts,  Pennsylvania,  Minnesota, 
and  Ohio. 

M.  Liszt  proposes  that  the  indeterminate  character 
of  punishment  should  be  only  relative,  that  is  to  say, 
limited  between  a  minimum  and  a  maximum,  these 
being  laid  down  in  the  sentence  of  the  judge.  Special 
commissions  for  supervising  the  administration  of 
punishment,  consisting  of  the  Governor  of  the  prison, 
the  Public  Prosecutor,  the  judge  who  heard  the  case, 
and  two  members  nominated  by  Government  (instead 
of  the  court  which  passed  sentence,  as  proposed  by 
Villert  and  Van  Hamel),  should  decide  on  the  actual 
duration  of  the  punishment,  after  having  examined 
the  convict  and  his  record.  Thus  these  commissions 
would  be  able  to  liberate  at  once  (with  or  without 
conditions)  or  to  order  a  prolongation  of  punishment, 
especially  for  habitual  criminals. 


214  CRIMINAL   SOCIOLOGY. 

With  the  formation  of  these  commissions  there 
might  be  associated  the  prison  studies  and  aid  of 
discharged  prisoners  referred  to  on  a  former  page. 

But  I  think  that  this  proposal  of  M.  Liszt  is 
acceptable  only  for  commissions  of  supervision,  or  of 
the  execution  of  punishment,  such  as  already  exist  in 
several  countries,  with  a  view  solely  to  prison  admini- 
stration and  benevolence,  and  in  which  of  course  the 
experts  of  criminal  anthropology  ought  to  take  part, 
who,  as  I  have  suggested,  should  be  included  in  every 
preliminary  criminal  inquiry.  As  for  the  determina- 
tion of  the  maximum  and  minimum  in  such  a  sentence, 
I  believe  it  would  not  be  practicable  ;  the  acting  com- 
missions might  find  it  necessary  to  go  beyond  them, 
and  it  would  be  opposed  to  the  very  principle  of 
indeterminate  segregation.  The  reason  given  by  M. 
Liszt,  that  with  this  provision  the  contrast  with  actual 
systems  of  punishment  would  be  less  marked,  does 
not  seem  to  me  decisive  ;  for  the  principle  we  main- 
tain is  so  radically  opposed  to  traditional  theories  and 
to  legislative  and  judicial  custom  that  this  optional 
passing  of  the  limits  would  avoid  no  difficulty,  whilst 
it  would  destroy  the  advantages  of  the  new  system. 

In  other  words,  when  the  conditions  of  the  act 
committed  and  the  criminal  who  has  committed  it 
show  that  the  reparation  of  the  damage  inflicted  is 
not  sufficient  by  way  of  a  defensive  measure,  the  judge 
will  only  have  to  pronounce  in  his  sentence  an  in- 
definite detention  in  the  lunatic  asylum,  the  prison 
for  incorrigibles,  or  the  establishments  for  occasional 
criminals  (penal  colonies,  &c.). 

The  execution  of  this  sentence  will  be  rendered 


PRACTICAL   REFORMS.  21 S 

definite  by  successive  steps,  which  will  no  longer  be 
detached,  as  they  now  are,  from  the  action  of  the 
magistrate,  and  taken  without  his  knowledge,  but 
will  be  a  systematic  continuation  of  his  work.  Per- 
manent commissions  for  the  supervision  of  punish- 
ment, composed  of  administrative  functionaries, 
experts  in  criminal  anthropology,  magistrates,  and 
representatives  of  the  Public  Prosecutor  and  the 
defence,  would  render  impossible  that  desertion  and 
oblivion  of  the  convict  which  now  follow  almost 
immediately  on  the  delivery  of  the  sentence,  with  the 
execution  of  which  the  judge  has  nothing  to  do,  except 
to  see  that  he  is  represented.  Pardon,  or  conditional 
liberation,  or  the  serving  of  the  full  punishment,  are 
all  left  at  present  to  the  chance  of  a  blind  official 
routine.  These  commissions  would  have  great  social 
importance,  for  they  would  mean  on  one  hand  the 
protection  of  society  against  imprudent  liberation  of 
the  most  dangerous  criminals,  and  on  the  other  hand 
the  protection  of  the  less  dangerous  against  the 
danger  of  an  imprisonment  recognised  as  excessive 
and  unnecessary. 

Allied  to  the  principle  of  indeterminate  segrega- 
tion is  that  of  conditional  release,  which  with  the 
progressive  prison  system,  known  as  the  Irish,  is  now 
accepted  in  nearly  all  European  countries.  But 
conditional  liberation  in  the  system  of  definite 
punishments,  without  distinction  amongst  the  types 
of  criminals,  is  both  contradictory  in  theory  and 
ineffectual  in  practice.  At  present,  indeed,  it  has 
only  a  mechanical  and  almost   impersonal  applica- 


2l6  CRIMINAL   SOCIOLOGY. 

tion,  with  one  fallacious  test,  that  of  the  alleged 
"  good  conduct  "  of  the  prisoner,  which,  according  to 
the  English  Inquiry  Commission  in  1863,  "can  only 
have  the  negative  value  of  the  absence  of  grave 
breaches  of  discipline." 

It  will  be  understood  that  conditional  release,  as  it 
would  be  organised  in  the  positive  system  of  indeter- 
minate segregation,  ought  only  to  be  granted  after  a 
physio-psychological  examination  of  the  prisoner,  and 
not  after  an  official  inspection  of  documents,  as  at 
present.  So  that  it  will  be  refused,  no  longer,  as  now, 
almost  exclusively  in  regard  to  the  gravity  of  the 
crime,  but  in  regard  to  the  greater  or  less  re-adapta- 
bility of  the  criminal  to  social  conditions.  It  will 
therefore  be  necessary  to  deny  it  to  mad  and  born 
criminals  who  are  guilty  of  great  crimes. 

Conditional  liberation  is  now  carried  out  under  the 
special  supervision  of  the  police ;  but  this  is  an  in- 
effectual measure  for  crafty  criminals,  and  disastrous 
for  occasional  criminals,  who  are  shut  out  by  the 
supervision  from  re-adaptation  to  normal  existence. 
The  system  of  indeterminate  segregation  renders  all 
special  supervision  useless.  Moreover,  this  duty  only 
distracts  policemen  by  compelling  them  to  keep  an 
eye  on  a  (cw  hundred  liberated  convicts,  and  to  neg- 
lect thousands  of  other  criminals,  who  increase  the 
number  of  unknown  perpetrators  of  crime. 

Similarly  as  to  the  discharged  prisoners'  aid 
societies,  which,  notwithstanding  their  many  senti- 
mental declamations,  and  the  excellence  of  their  in- 
tentions, continue  to  be  as  sterile  as  they  are 
benevolent      The   reason    here    also    is    that   they 


PRACTICAL  REFORMS.  217 

forget  to  take  into  account  the  different  types  of 
criminals,  and  that  they  are  accustomed  to  give 
their  patronage  impartially  to  all  discharged 
prisoners,  whether  they  are  reclaimable  or  not 
It  must  not  be  forgotten,  moreover,  that  this  aiding 
of  malefactors  ought  not  to  be  exaggerated  when 
there  are  millions  of  honest  workmen  more  un- 
fortunate than  these  liberated  prisoners.  In  spite 
of  all  the  sentimentalism  of  the  prisoners'  aid 
societies,  I  believe  that  a  foreman  will  always  be 
in  the  right  if  he  chooses  an  honest  workman  for 
a  vacancy  in  his  workshops  in  preference  to  a 
discharged    prisoner. 

At  the  same  time  these  societies  may  produce 
good  results  if  they  concern  themselves  solely  with 
occasional  criminals,  and  especially  with  the  young, 
and  make  their  study  of  crime  contribute  to  the 
training  of  future  magistrates  and  pleaders.. 

2.  The  second  fundamental  principle  of  the  posi- 
tive system  of  social  defence  against  crime  is  that  of 
indemnification  for  damage,  on  which  the  positive 
school  has  always  dwelt,  in  combination  with  radical, 
theoretical,  and  practical  reforms. 

Reparation  of  damage  suffered  by  the  victims  of 
crime  may  be  regarded  from  three  different  points  of 
view: — (i)  As  an  obligation  of  the  criminal  to  the 
injured  party  ;  (2)  as  an  alternative  for  imprisonment 
for  slight  offences  committed  by  occasional  crimi- 
nals ;  and  (3)  as  a  social  function  of  the  State  on 
behalf  of  the  injured  person,  but  also  in  the  indirect 
and  not  less  important  interest  of  social  defence. 


2l8  CRIMINAL  SOCIOLOGY. 

The  positive  school  has  affirmed  the  last  two  re- 
forms— the  second  on  the  initiative  of  Garofalo  and 
Puglia,  and  the  third  on  my  own  proposal,  which,  as 
being  more  radical,  has  been  more  sharply  contested 
by  the  classical  and  eclectic  schools. 

In  my  treatise  on  "  The  Right  of  Punishment  as 
a  Social  Function,"  I  said  :  "  Let  us  not  be  told  that 
civi^  reparation  is  no  part  of  penal  responsibility.  I 
can  see  no  real  difference  between  the  payment  of 
a  sum  of  money  as  a  fine  and  its  payment  as 
damages  ;  but  more  than  that,  I  think  a  mistake 
has  been  made  in  separating  civil  and  penal  measures 
too  absolutely,  whereas  they  ought  to  be  conjoined 
for  defensive  purposes,  in  preventing  certain  particular 
anti-social  acts."  And  again,  classifying  the  measures 
of  social  defence  ("  measures  of  prevention,  repara- 
tion, repression,  and  elimination  "),  I  said  in  regard  to 
measures  of  reparation  :  "  Our  proposed  reform  is 
not  intended  to  be  theoretical  merely,  for  indeed  it 
may  be  said  already  that  this  liability  to  indemnify  is 
established  in  the  majority  of  cases  ;  but  it  should  be 
above  all  a  practical  reform,  in  the  sense  that,  in- 
stead of  separating  civil  and  penal  measures,  we  shall 
make  their  joint  application  more  certain,  and  even 
require  special  regulations  to  compel  the  criminal 
judges,  for  instance,  to  assess  the  damages,  and  so 
avoid  the  delays  and  mischances  of  a  new  trial 
before  the  civil  judges,  and  to  compel  the  Public 
Prosecutor  to  make  an  official  demand,  even  when 
through  ignorance  or  fear  there  is  no  action  on  the 
part  of  the  injured  person,  that  the  criminal  should 
be  condemned  to  make  good  the  loss  which  he  has 


PRACTICAL  REFORMS.  219 

inflicted.  It  will  then  be  seen  that  the  fear  of  having 
to  make  strict  restitution  will  be  a  spur  to  the  dili- 
gence of  the  well-to-do,  in  regard  to  involuntary 
offences,  whilst  for  the  poor  we  shall  be  able  to 
impose  work  on  behalf  of  the  injured  person  in  place 
of  pecuniary  damages." 

Shortly  afterwards  Garofalo  wrote  :  "  In  the  opinion 
of  our  school,  for  many  offences,  especially  slighter 
offences  against  the  person,  it  would  be  serviceable  to 
substitute  for  a  few  days'  imprisonment  an  effectual 
indemnification  of  the  injured  party.  Reparation 
of  damage  might  become  a  genuine  penal  substitute, 
when  instead  of  being,  as  now,  a  legal  consequence,  a 
right  which  can  be  enforced  by  the  rules  of  civil  pro- 
cedure, it  would  become  an  obligation  from  which 
the  accused  could  in  no  way  extract  himself." 

Of  all  the  positive  school,  Garofalo  has  insisted 
most  strongly  on  these  ideas,  enlarging  upon  them  in 
various  proposals  for  the  practical  reform  of  procedure. 

The  principle  has  made  further  progress  since  the 
speech  of  M.  Fioretti  at  the  first  Congress  of  Crimi- 
nal Anthropology  (Rome,  1885),  which  adopted  the 
resolution  brought  forward  by  MM.  Ferri,  Fioretti, 
and  Venezian :  "  The  Congress,  being  convinced  of 
the  importance  of  providing  for  civil  indemnification, 
in  the  immediate  interest,  not  only  of  the  injured 
party,  but  also  of  preventive  and  repressive  social 
defence,  is  of  opinion  that  legislation  could  most 
expeditiously  enact  the  most  suitable  measures 
against  such  as  cause  loss  to  other  persons,  and 
against  their  accomplices  and  abettors,  by  treating 
the   recovery  of  damages   as   a   social    function   as- 


220  CRIMINAL  SOCIOLOGY, 

signed  to  its  officials,  that  is  to  say,  to  the  Public 
Prosecutor  at  the  bar,  to  the  judges  in  their  sen- 
tences, to  the  prison  officials  in  the  ultimate  pay- 
ment for  prison  labour,  and  in  the  stipulation  for 
conditional  release." 

The  classical  principle  that  indemnification  for  loss 
caused  by  an  unlawful  act  is  a  purely  civil  and  private 
obligation  of  the  offender  (like  that  created  by  any 
breach  of  contract !),  and  that  in  consequence  it  ought 
to  be  essentially  distinct  from  the  penal  sentence, 
which  is  a  public  reparation,  has  inevitably  caused 
the  complete  oblivion  of  indemnification  in  every-day 
judicial  practice.  For  the  victims  of  crime,  finding 
themselves  compelled  to  resort  to  the  courts,  and 
fearing  the  expense  of  a  civil  trial  to  give  effect  to 
the  sentence  of  damages  and  interest  thereon,  have 
been  driven  to  abandon  the  hope  of  seeing  their  loss 
actually  and  promptly  compensated.  Hence  the 
necessity  for  some  paltry  compromise,  which  has 
to  be  accepted  almost  as  a  generous  concession 
from  the  offender,  together  with  the  revival  of 
private  vengeance,  and  a  loss  of  confidence  in  the 
reparatory  action  of  social  justice. 

Even  in  the  scientific  domain  it  has  come  about 
that  criminal  experts  have  abandoned  the  question 
of  indemnification  to  the  civil  experts,  and  these  in 
their  turn  have  almost  suffered  jt  to  pass  into  oblivion, 
inasmuch  as  they  always  regarded  it  as  belonging  to 
matters  of  penal  law  and  procedure. 

It  is  only  by  the  radical  innovation  of  the  positive 
school  that  this  legal  custom  has  received  new  energy 
and  vitality. 


PRACTICAL  REFORMS.  221 

I  do  not,  however,  intend  in  this  place  to  concern 
myself  with  indemnification  from  the  first  point  of 
view,  namely,  the  forms  of  procedure  necessary  to 
render  it  more  strict  and  effectual,  such  as  the  official 
demand  and  execution  by  the  Public  Prosecutor,  even 
when  no  action  is  brought  by  the  injured  party  ;  the 
fixing  of  the  damages  in  every  penal  sentence  ;  the 
immediate  lien  and  claim  upon  the  goods  of  the 
condemned  person,  so  as  to  avoid  the  pretence  of 
inability  to  pay ;  the  paying  down  of  the  sum,  or  a 
part  of'  the  salary  or  wages  of  solvent  defendants  ; 
compulsory  labour  by  those  unable  to  pay ;  the 
assignment  of  part  of  the  prison  wages  for  the 
benefit  of  the  victims ;  the  payment  of  all  or  most 
of  the  damages  as  a  necessary  condition  ot  pardon 
or  conditional  release  ;  the  establishment  of  a  treasury 
of  fines  for  prepayment  to  the  family  of  the  victims  ; 
the  liability  of  the  heirs  of  the  condemned  persons 
for  indemnifications,  and  so  forth. 

All  these  propositions  are  in  sharp  contrast  with 
Art.  37  of  the  new  Italian  penal  code,  which  has 
given  no  other  guarantee  to  the  victims  of  offences 
than  the  superfluous,  or  ironical,  or  immoral  declara- 
tion that  "  penal  condemnation  does  not  prejudice 
the  right  of  the  injured  person  to  restitution  and  in- 
demnification " — as  though  there  were  any  doubt  of 
the  fact. 

I  only  wish  to  insist  on  the  question  of  principle, 
that  is,  on  the  essentially  public  character  which  we 
assign  to  indemnification  as  a  social  function.  For 
us,  to  compare  the  liability  of  the  criminal  to  repair 
the  loss  caused  by  his  crime  with  the  liability  arising 
from  breach  of  contract  is  simply  immoral. 
i6 


222  CRIMINAL   SOCIOLOGY, 

Crime,  just  as  it  implies  a  social  reaction  in  the 
form  of  an  indefinite  segregation  of  the  criminal, 
when  the  act  is  serious  and  the  author  dangerous, 
ought  also  to  imply  a  social  reaction  in  the  shape  cf 
indemnification,  accessory  to  segregation  when  that 
is  necessary,  or  adequate  by  itself  for  social  defence 
when  the  act  is  not  serious,  and  the  author  is  not 
dangerous.  For  slight  offences  by  occasional  crimi- 
nals, strict  indemnification  will,  on  the  one  hand, 
avoid  the  disadvantages  of  short  terms  of  imprison- 
ment, and  will,  on  the  other  hand,  be  much  more 
efficacious  and  sensible  than  an  assured  provision  of 
food  and  shelter,  for  a  few  days  or  weeks,  in  the 
State  prisons. 

Indemnification  may  naturally  take  two  forms,  as 
a  fine  or  an  indemnity  payable  to  the  State,  and  as 
an  indemnity  or  a  reparation  payable  to  the  injured 
person. 

It  may  also  be  added  that  the  State  should  be 
made  responsible  for  the  rights  of  the  victims,  and 
give  them  immediate  satisfaction,  especially  for 
crimes  of  violence,  recouping  itself  from  the  offender, 
as  it  does,  or  ought  to  do,  for  legal  costs. 

The  evolution  of  punishment  is  a  striking  proof  of 
this.  First,  the  reaction  against  crime  is  an  entirely 
private  concern  ;  then  it  assumes  a  weaker  form  in 
pecuniary  reparation,  whereof,  by  and  by,  a  portion 
goes  to  the  State,  which  presently  retains  the  whole 
sum,  leaving  to  the  victim  the  poor  consolation  of 
proceeding  separately  for  an  indemnification.  Nothing 
therefore  could  be  more  in  accord  with  this  evolution 
of  punishment  than  the  proposed    reform,   whereby 


PRACTICAL  REFORMS.  223 

the  indemnification  of  a  merely  private  injury,  as  it 
is  regarded  in  the  primitive  phase  of  penal  justice, 
becomes  a  public  function,  so  far  as  it  is  the  legal 
and  social  consequence  of  the  offence. 

The  classical  principles  in  this  respect,  and  the 
practical  consequences  which  flow  from  them,  are 
more  like  a  humorous  farce  than  an  institution  of 
justice  ;  and  it  is  only  the  force  of  habit  which 
prevents  the  world  from  realising  its  full  comicality. 

In  fine,  citizens  pay  taxes  in  return  for  the  public 
services  of  the  State,  amongst  which  that  of  public 
security  is  the  chief.  And  the  State  actually  ex- 
pends millions  every  year  upon  this  social  func- 
tion. Nevertheless,  every  crime  which  is  committed 
is  followed  by  a  grotesque  comedy.  The  State, 
which  is  responsible  for  not  having  been  able  to 
prevent  crime,  and  to  give  a  better  guarantee  to 
the  citizens,  arrests  the  criminal  (if  it  can  arrest 
him — and  seventy  per  cent,  of  discovered  crimes  go 
unpunished).  Then,  with  the  accused  person  before 
it,  the  State,  "  which  ought  to  concern  itself  with 
the  lofty  interests  of  eternal  justice,"  does  not  con- 
cern itself  with  the  victims  of  the  crime,  leaving  the 
indemnification  to  their  prosaic  "  private  interest," 
and  to  a  separate  invocation  of  justice.  And  then 
the  State,  in  the  name  of  eternal  justice,  exacts  from 
the  criminal,  in  the  shape  of  a  fine  payable  into  the 
public  treasury,  a  compensation  for  its  own  defence — 
which  it  does  not  secure,  even  when  the  crime  is  only 
a  trespass  upon  private  property  ! 

Thus  the  State,  which  cannot  prevent  crime,  and 
can  only  repress  it  in  a  small  number  of  cases,  and 


224  CRIMINAL   SOCIOLOGY. 

which  fails  accordingly  in  its  first  duty,  for  which  the 
citizens  pay  it  their  taxes,  demands  a  price  for  all 
this !  And  then  again  the  State,  sentencing  a  million 
and  a  half  to  imprisonment  within  ten  years,  puts 
the  cost  of  food  and  lodging  on  the  shoulders  of  the 
same  citizens,  whom  it  has  failed  either  to  defend  or 
to  indemnify  for  the  loss  which  they  have  suffered  i 
And  all  in  the  name  of  eternal  retributive  justice. 

This  method  of  "administering  justice  "'must  be 
radically  altered.  The  State  must  indemnify  indi- 
viduals for  the  damage  caused  by  crimes  which  it 
has  not  been  able  to  prevent  (as  is  partially  recog- 
nised in  cases  of  public  disaster),  recouping  itself 
from  the  criminals. 

Only  then  shall  we  secure  a  strict  reparation  of 
damage,  for  the  State  will  put  in  motion  its  in- 
exorable fiscal  machinery,  as  it  now  does  for  the 
recovery  of  taxes ;  and  on  the  other  hand  the 
principle  of  social  community  of  interests  will  be 
really  admitted  and  applied,  not  only  against  the 
individual  but  also  for  him.  For  we  believe  that  if 
the  individual  ought  to  be  always  responsible  for  the 
crimes  which  he  commits,  he  ought  also  to  be  always 
indemnified  for  the  crimes  of  which  he  is  the  victim. 

In  any  case,  as  the  indefinite  segregation  of  the 
criminal  is  the  fundamental  principle  of  the  positive 
system  of  social  defence  against  crime,  apart  from 
the  technical  systems  of  imprisonment  and  detention, 
so  indemnification  as  a  social  function  is  a  second 
essential  principle,  apart  from  the  special  rules  of 
procedure  for  carrying  it  into  effect 


PRACTICAL   REFORMS.  225 

These  two  fundamental  principles  of  the  positive 
system  would  still  be  incomplete  if  they  did  not  come 
into  practical  operation  according  to  a  general  rule, 
which  leads  up  to  the  practical  organisation  of 
social  defence — that  is  to  say,  the  adaptation  of 
defensive  measures  to  the  various  criminal  types. 

The  tendency  of  the  classical  theories  on  crime 
and  prison  discipline  is  in  sharp  contrast,  for  their 
ideal  is  the  "  uniformity  of  punishment "  which  lies 
at  the  base  of  all  the  more  recent  penal  codes. 

If  for  the  classical  school  the  criminal  is  but  an 
average  and  abstract  type,  the  whole  difference  of 
treatment  is,  of  course,  reduced  to  a  graduation  of 
the  "  amount  of  crime  "  and  the  "  amount  of  punish- 
ment." And  then  it  is  natural  that  this  punitive 
dosing  should  be  more  difficult  when  the  punish- 
ments are  different  in  kind,  and  not  very  similar  in 
their  degrees  of  coincident  afflictive  and  correctional 
power.  Thus  the  ideal  becomes  a  single  punishment, 
apportioned  first  by  the  legislature  and  then  by  the 
judge,  in  an  indefinite  number  of  doses. 

Here  and  there  a  solitary  voice  has  been  heard, 
even  amongst  the  classical  experts,  objecting  to  this 
tendency  towards  dogmatic  uniformity ;  but  it  has 
had  no  influence.  The  question  brought  forward  by 
M.  D'Alinge  at  the  Prison  Congress  in  London 
{Proceedings ,  1872,  p.  327),  "whether  the  moral 
classification  of  prisoners  ought  to  be  the  main 
foundation  of  penitentiary  systems,  either  in  as- 
sociation or  on  the  cellular  plan,"  which  he  himself 
decided  in  the  aflfirmative,  was  not  so  much  as 
discussed,  and  it  was  not   even    referred   to   at   the 


226  CRIMINAL  SOCIOLOGY. 

successive  Congresses  at  Stockholm  (1878).  Rome 
(1885),  and  St.  Petersburg  (1889).  On  the  contrary, 
the  Congress  at  Stockholm  decided  that,  "  reserving 
minor  and  special  punishments  for  certain  slight 
infractions  of  the  law,  or  for  such  as  do  not  point 
to  the  corrupt  nature  of  their  authors,  it  is  desirable 
to  adopt  for  every  prison  system  the  greatest  possible 
legal  assimilation  of  punishments  by  imprisonment, 
with  no  difference  except  in  their  duration,  and  the 
consequences  following  upon  release."  ' 

To  positivists,  the  "  uniformity  of  punishment,"  even 
of  mere  detention,  appears  simply  absurd,  since  it 
ignores  the  capital  fact  of  different  categories  of 
criminals. 

There  must  be  homogeneity  between  the  evil  and 
its  remedy;  for,  as  Dumesnil  says,  "the  prisoner  is 
a  moral  (I  would  add  a  physical)  patient,  more  or 
less  curable,  and  we  must  apply  to  him  the  great 
principles  of  the  art  of  medicine.  To  a  diversity  of 
ills  we  must  apply  a  diversity  of  remedies." 

In  this  connection,  however,  we  must  avoid  the  two 
extremes,  uniformity  of  punishment  and  the  so-called 
individualisation  of  punishment,  the  latter  especially 
in  fashion  amongst  American  prison  experts.  No 
doubt  it  would  be  a  desirable  thing  to  apply  ? 
particular  treatment  to  each  convict,  after  a  physical 
and  psychological  study  of  his  individuality,  and  ol 
the  conditions  which  led  him  into  crime ;  but  this 
is  not  practicable  when  the  number  of  prisoners  is 

'  Ptocee(iif7gs,\.  138-70,  5SI-7,  561-3.  Now  and  then,  however,  a 
prison  expert  of  more  positive  tendencies  maintains  "  the  very  great 
use,  or  rather  the  scientific  necessity,  of  the  classification  of  prisoners 
as  a  basis  lor  the  punitive  and  prison  system  "  (Beltrani  Scalia.) 


PRACTICAL  REFORMS.  227 

very  great,  and  the  managing  staff  have  no  adequate 
notions  of  criminal  biology  and  psychology.  How 
can  a  governor  individualise  the  penal  treatment  of 
four  or  five  hundred  prisoners  ?  And  does  not  the 
cellular  system,  which  reduces  the  characteristic 
manifestations  of  the  personal  dispositions  of 
prisoners  to  a  minimum,  levelling  them  all  by  the 
uniformity  of  routine  and  silence,  render  it  im- 
possible to  observe  and  get  to  know  the  special 
character  of  each  condemned  person,  and  so 
specialising  the  discipline?  Where,  too,  are  we  to 
find  the  necessary  governors  and  warders  who  would 
know  how  to  discharge  this  difficult  duty  ?  The 
solid  fact  that  particular  houses  of  correction  or 
punishment  are  in  excellent  condition  when  their 
governors  have  the  psychological  intuition  of  a  De 
Metz,  a  Crofton,  a  Spagliardi,  or  a  Roukawichnikoff, 
and  languish  when  he  departs,  strikingly  demonstrates 
that  the  whole  secret  of  success  lies  in  the  spirit  of 
a  wise  governor,  skilled  in  psychology,  rather  than  in 
the  slender  virtue  of  the  cell. 

Just  as  an  imperfect  code  with  good  judges  succeeds 
better  than  a  "  monumental "  code  with  foolish  judges, 
so  a  prison  system,  however  ingenious  and  sym- 
metrical, is  worthless  without  a  staff  to  correspond. 

And  as  the  question  of  the  staff  is  always  very 
serious,  especially  for  financial  reasons,  I  believe  that, 
instead  of  the  impracticable  idea  of  individualisation 
in  punishment,  we  ought  to  substitute  that  of  classifica- 
tion, which  is  equally  efficacious  and  more  easily 
applied.  It  cannot  be  denied  that  criminal  anthro- 
pologists are  not  all  agreed  on  the  classification  of 


228  CRIMINAL   SOCIOLOGY. 

criminals.  But  I  have  already  shown  that  the 
differences  between  proposed  classifications  are  only 
formal  and  of  secondary  importance  ;  and  again,  the 
number  of  those  who  agree  to  the  classification  which 
I  have  proposed  increases  day  by  day. 

Before  inquiring  how  we  can  practically  organise 
the  positive  system  of  social  defence  on  the  basis  of 
this  anthropological  classification  of  criminals,  we 
must  bear  in  mind  two  rules,  common  to  all  the 
technical  proposals  of  the  same  system. 

First,  care  must  be  taken  that  segregation  does 
not  become  or  continue  to  be  (as  it  is  too  often  at 
present)  a  welcome  refuge  of  idleness  and  criminal 
association,  instead  of  a  deprivation. 

Penitentiaries  for  condemned  prisoners  —  the 
classical  prison  experts  make  no  distinction  be- 
tween their  cells  for  prisoners  before  trial  and  those 
for  convicts ! — should  not  be  so  comfortable  as  to 
excite  the  envy  (a  vast  injustice  and  imprudence) 
of  the  honest  and  ill- fed  rural  labourer  vegetating 
in  his  cottage,  or  of  the  working-man  pining  in 
his  garret. 

Secondly,  the  obligation  to  labour  should  be  im- 
perative for  all  who  are  in  prison,  except  in  case 
of  sickness.  Prisoners  should  pay  the  State,  not  as 
now  for  their  tobacco  and  wine,  but  for  food,  clothes, 
and  lodging,  whilst  the  remainder  of  their  earnings 
should  go  to  indemnify  their  victims. 

The  classical  theory  declares  that  "the  State,"  as 
Pessina  writes,  "being  compelled  to  adopt  depriva- 
tion of  liberty  as  the  principal  means  of  penal 
repression    and    retribution,    contracts    an    absolute 


PRACTICAL   REFORMS.  229 

obligation  to  provide  those  whom  they  punish  in 
this  way  not  only  with  bodily  sustenance,  but  also 
with  the  means  of  supplying  their  intellectual  and 
moral  needs,"  So  the  State  maintains  in  idleness 
the  majority  even  of  those  who  are  said  to  be 
"  sentenced  to  hard  labour,"  and  the  offence,  after 
it  has  served  the  turn  of  the  offender,  further  assures 
him  free  lodging  and  food,  shifting  the  burden  on  to 
honest  citizens. 

I  cannot  see  by  what  moral  or  legal  right  the  crime 
ought  to  exempt  the  criminal  from  the  daily  necessity 
of  providing  for  his  own  subsistence,  which  he  ex- 
perienced before  he  committed  the  crime,  and  which 
all  honest  men  undergo  with  so  many  sacrifices. 
The  irony  of  these  consequences  of  the  classical 
theories  could  not,  in  fact,  be  more  remarkable.  So 
long  as  a  man  remains  honest,  in  spite  of  pathetic 
misery  and  sorrow,  the  State  takes  no  trouble  to 
guarantee  for  him  the  means  of  existence  by  his 
labour.  It  even  bans  those  who  have  the  audacity 
to  remind  society  that  every  man,  by  the  mere  fact 
of  living,  has  the  right  to  live,  and  that,  as  work  is 
the  only  means  of  obtaining  a  livelihood,  every  man 
has  the  right  (as  all  should  recognise  the  duty)  of 
working  in  order  to  live. 

But  as  soon  as  any  one  commits  a  crime,  the 
State  considers  it  its  duty  to  take  the  utmost  care  of 
him,  ensuring  for  him  comfortable  lodging,  plenty  of 
food,  and  light  labour,  if  it  does  not  grant  him  a 
happy  idleness  !  And  all  this,  again,  in  the  name  of 
eternal  and  retributive  justice. 

It  may  be  added  that  our  proposals  are  the  only 


230  CRIMINAL   SOCIOLOGY. 

way  of  settling  the  oft-recurring  question  as  to  the 
economic  competition  (by  the  price  of  commodities), 
and  the  moral  competition  (in  the  regularity  of  work) 
which  prison  labour  unjustly  wages  with  free  and 
honest  labour.  As  a  matter  of  fact,  as  prisoners  can 
only  remain  idle  or  work,  they  must  clearly  be  made 
to  work.  But  they  must  be  made  to  work  at  trades 
which  come  less  into  competition  with  free  labour ; 
and  it  is  especially  necessary  to  give  prisoners  wages 
equal  to  those  of  free  labourers,  on  condition  that  they 
pay  the  State  for  their  food,  clothes,  and  lodging, 
whilst  the  remainder  goes  to  indemnify  their  victims. 
Over  the  prison  gates  I  should  like  to  carve  that 
maxim  of  universal  application  :  *'  He  who  will  not 
work,  neither  shall  he  eat." 


V. 

Since  the  novel  proposals  put  forward  half  a  century 
ago,  amongst  others  by  doctors  Georget  and  Brierre 
de  Boismont,  a  whole  library  of  volumes  has  been 
published  in  favour  of  criminal  lunatic  asylums.  A 
few  voices  here  and  there  were  heard  in  opposition  or 
reserve,  but  these  have  almost  entirely  ceased. 

Criminal  lunatic  asylums  were  adopted  in  England 
as  early  as  1786.  In  1815  Tsthlehem  Hospital  was 
appropriated  to  criminal  lunatics,  and  the  Broadmoor 
Asylum  was  founded  in  1863.  Similar  asylums  exist 
at  Dundrum  in  Ireland  (1850),  at  Perth  in  Scotland 
(1858),  at  New  York  (1874),  and  in  Canada  (1877). 

On  the  continent  of  Europe  there  is  not  to  this  day 
a  regular  asylum  for  mad  criminals,  though  France, 


PRACTICAL  REFORMS.  23I 

after  an  experiment  in  treating  condemned  madmen 
at  Bicetre,  opened  a  separate  wing  for  them  in  the 
prison  at  Gaillon.  Holland  has  assigned  to  them 
the  hospital  of  Bosmalen  (Brabant)  ;  Germany  has 
special  wards  in  the  establishments  at  Waldheim, 
Bruchsaal,  Halle,  and  Hamburg  ;.  and  Italy,  after 
founding  a  special  ward  in  1876,  at  the  establish- 
ment for  relapsed  prisoners  at  Aversa,  has  converted 
the  Ambrogiana  establishment  at  Montelupo  in 
Tuscany,  into  an  asylum  for  insane  convicts,  and  for 
prisoners  under  observation  as  being  of  unsound 
mind.  The  new  Italian  penal  code,  though  not 
openly  recognising  the  foundation  of  asylums  for 
criminals  acquitted  on  the  ground  of  insanity,  has, 
in  its  general  spirit  of  eclecticism,  given  judges  the 
power  of  handing  them  over  to  the  competent 
authority  when  it  would  be  dangerous  to  release 
them  (Art  46).  At  the  Montelupo  Asylum  criminals 
acquitted  on  the  ground  of  insanity  are  also  detained, 
at  first  under  observation,  then  by  a  definite  order 
from  the  president  of  the  Tribunal,  who  can  revoke 
his  order  on  the  petition  of  the  family,  or  of  the 
authorities. 

The  inquiry  into  existing  legislation  on  insane 
criminals,  undertaken  by  the  "  Society  G^nerale  des 
prisons  de  Paris,"  showed  that  in  France,  Germany, 
Austria- Hungary,  Croatia,  Belgium,  Portugal,  and 
Sweden,  the  authors  of  crimes  or  offences  who  are 
acquitted  on  the  ground  of  insanity  are  withdrawn 
from  all  control  by  the  judicial  authority,  and  en- 
trusted to  the  more  or  less  regular  and  effectual 
control  of  the  administrative  authority.     In  England, 


232  CRIMINAL   SOCIOLOGY. 

Holland,  Denmark,  Spain,  and  Russia,  on  the  contraiy, 
the  judicial  authority  is  empowered  and  even  com- 
pelled to  order  the  seclusion  of  these  individuals  in 
an  ordinary  or  a  criminal  lunatic  asylum. 

Of  the  objections  raised  against  this  form  of  social 
defence  against  insane  criminals,  I  pass  over  that  of 
the  cost,  which  is  considerable  ;  for  even  from  the 
financial  point  of  view  I  believe  that  the  actual 
system,  which  gives  no  guarantee  of  security  against 
madmen  with  criminal  tendencies,  is  more  costly  to 
the  administration,  if  only  by  reason  of  the  damage 
which  they  cause.  I  also  pass  over  the  other  objec- 
tion, based  on  the  violent  scenes  which  are  said  to  be 
inseparable  from  the  association  of  such  prisoners  ; 
for  experience  has  shown  that  forebodings  are  ill 
founded  in  regard  to  criminal  asylums  where  the 
inmates  are  classified  according  to  their  tendencies, 
under  the  direction  of  a  staff  with  special  knowledge, 
who  are  able  to  prevent  such  outbreaks.  In  ordinary 
asylums,  on  the  other  hand,  a  few  insane  criminals 
are  sufficient  to  render  the  maintenance  of  order  very 
difficult,  and  their  inevitable  and  frequent  outbreaks 
have  dire  effects  on  the  other  patients. 

The  most  serious  and  repeated  difficulties  in  regard 
to  lunatic  asylums  spring  from  the  very  principles  of 
the  defensive  function  of  society. 

It  is  said  in  the  first  place  that  the  author  of  a 
dangerous  action  is  either  a  madman  or  else  a 
criminal.  If  he  is  a  madman,  he  has  nothing  to 
do  with  penal  justice — so  Fabret,  Mendel,  and  others 
have  said  ;  his  action  is  not  a  crime,  for  he  had  no 


PRACTICAL  REFORMS.  233 

control  over  himself,  and  he  ought  to  go  to  an 
ordinary  asylum,  special  measures  b^ing  taken  for 
him,  as  for  every  other  dangerous  madman.  Or  else 
he  is  a  criminal,  and  then  he  has  nothing  to  do  with 
a  lunatic  asylum,  and  he  ought  to  go  to  prison. 

But  there  is  a  fallacy  in  this  dilemma,  for  it  leaves 
out  the  intermediate  cases  and  types,  where  particular 
individuals  are  at  the  same  time  mad  and  criminal 
And  even  if  it  were  a  question  of  madmen  only,  the 
logical  consequence  would  not  be  to  bar  out  special 
asylums,  for  it  seems  clear  that  if  ordinary  madmen 
(not  criminals,  that  is,  not  the  authors  of  dangerous 
actions)  ought  to  go  to  an  ordinary  asylum,  criminal 
madmen,  or  madmen  with  a  tendency  to  commit 
dangerous  or  criminal  actions,  as  well  as  those  who 
have  committed  them,  ought  to  go  to  a  special 
asylum  for  this  category  of  madmen.  For,  on  the 
other  hand,  we  constantly  see  that  administrative 
authorities  which  observe  the  same  rules  for  the 
seclusion  of  ordinary  and  criminal  madmen  do  not 
prevent  the  release  of  the  latter,  some  time  after  the 
crime,  when  the  disturbance  of  mind  and  even  the 
recollection  of  the  deed  are  all  but  effaced  ;  and, 
criminal  madmen  commit  other  violent  or  outrageous 
excesses,  very  soon  after  they  are  left  exposed  to 
their  diseased  tendencies.^ 

It  may  be  answered  that  it  is  suiHcient  to  have 

'  M.  Lunier,  writing  in  1881  of  epileptics,  and  the  method  of  treat- 
ment and  aid  appropriate  to  them,  says  that  of  33,000  known  epileptics 
in  France,  5,200  only  are  in  private  or  public  asylums,  whilst  28,000 
remain  with  their  families.  From  these  figures  it  would  appear  very 
probable  that  these  28,000  epileptics  left  at  liberty  commit  crimes  and 
offences. 


234  CRIMINAL  SOCIOLOGY, 

special  wings  in  ordinary  asylums,  which  would  also 
get  over  the  repugnance  of  families  against  the  asso- 
ciation of  their  quiet  and  harmless  patients  with 
murderous  and  outrageous  madmen.  But  experience 
has  already  proved  that  these  special  wards  do  not 
work  well,  for  it  is  too  difficult  with  the  same  staff  to 
apply  such  varied  treatment  and  discipline  as  are 
necessary  for  ordinary  and  criminal  lunatics. 

Fabret  says  that  "  a  so-called  criminal,  when  he  is 
seen  to  be  mad,  should  cease  to  be  regarded  as  a 
criminal,  and  ought  purely  and  simply  to  resume  his 
ordinary  rights." 

But,  in  the  first  place,  if  a  madman  is  distinguished 
from  all  other  inoffensive  madmen  by  the  grave  fact 
of  having  killed,  or  burned,  or  outraged,  it  is  clear 
that  he  cannot  "  purely  and  simply "  return  to  the 
same  kind  of  treatment  which  is  given  to  harmless 
lunatics. 

The  truth  is  that  this  argument  applies  to  a  large 
number  of  ideas  which  science  is  continually  weeding 
out,  and  which  have  proceeded  on  the  assumption 
that  madness  is  an  involuntary  misfortune  which 
must  be  treated,  and  that  crime  is  a  voluntary  fault 
which  must  be  chastised.  It  is  evident  on  the  other 
hand  that  crime  as  well  as  folly,  being  the  result  of 
abnormal  conditions  of  the  individual,  and  of  the 
physical  and  social  environment,  is  always  a  question 
for  social  defence,  whether  it  is  or  is  not  accompanied 
in  the  criminal  by  a  more  or  less  manifest  and  clinical 
form  of  mental  malady. 

The  same  reply  holds  good  for  the  second  objection 
to  asylums  for  criminal  madmen,  when  it  is  said  that 


PRACTICAL  REFORMS.  2$$ 

a  madman  cannot,  for  the  sole  reason  that  he  has 
killed  or  stolen,  be  shut  up  indefinitely,  perhaps  for 
ever,  in  an  asylum. 

Mancini,  who  was  keeper  of  the  seals,  and  at  the 
same  time  a  great  criminal  pleader,  aptly  expressed 
the  ideas  of  the  classical  school  when  replying  to  an 
interpellation  of  Deputy  Righi  on  the  foundation  of 
criminal  lunatic  asylums  : — "  I  could  never  under- 
stand how  the  same  court,  which  is  obliged  by  law 
to  acquit  upon  a  verdict  of  the  jury  that  the  accused 
is  insane,  and  therefore  not  responsible,  could  also 
decree  the  compulsory  seclusion  in  an  asylum,  for 
any  period,  of  the  same  accused  person.  ...  Is  it 
because  he  has  committed  a  crime  ?  But  that  is  not 
true,  for  the  man  who  did  not  know  what  he  was 
doing,  and  who  for  that  reason  has  been  declared 
innocent  before  the  law,  and  irresponsible,  cannot 
have  committed  a  crime.  There  is  consequently  no 
legal  reason  why  he  should  lose  the  exercise  and 
enjoyment  of  that  liberty  which  is  not  denied  to 
any  other  unfortunate  beings  who  are  diseased  like 
himself" 

It  would  be  impossible  to  put  more  clearly  the 
pure  classical  theory  on  crime  and  punishment ;  but 
perhaps  it  would  be  equally  impossible  to  show  less 
solicitude  for  social  defence  against  criminal  attacks. 
For  it  is  certain  that  the  mad  murderer  "  has  com- 
mitted no  crime  "  from  the  ethical  and  legal  point  of 
view  of  the  classical  school ;  but  it  is  still  more  certain 
that  there  is  a  dead  man,  and  a  family  left  behind 
who  may  be  ruined  by  the  deed,  and  it  is  very  prob- 
able that  this  homicide,  "  innocent  before  the  law," 


236  CRIMINAL  SOCIOLOGY. 

will  renew  his  outrage  on  other  victims — and  at  any 
rate  they  are  innocent. 

And  as  for  the  indefinite  period  of  seclusion  in  an 
asylum,  it  is  well  to  remember,  from  the  point  of  view 
of  individual  rights,  that  the  formula  with  which  a 
mad  criminal  is  committed  to  an  asylum  "  during 
her  Majesty's  pleasure "  had  its  origin  in  England, 
in  the  classic  land  of  the  habeas  corpus — the  sheet 
anchor  of  the  ordinary  citizen.  Again,  it  is  easy  to 
see  that  the  indefinite  seclusion  of  mad  criminals  is 
rendered  necessary  by  the  same  reasons  which  create 
the  fundamental  rule  for  criminals  of  every  kind.  It 
may  therefore  come  to  a  question  of  allowing  or  dis- 
allowing the  general  principles  of  the  positive  school. 
But  it  cannot  be  denied  that  they  are  unassailable, 
both  in  theory  and  in  practice.  Crime  is  a  phe- 
nomenon as  natural  as  madness — the  existence  of 
society  compels  the  organised  community  to  defend 
itself  against  every  anti-social  action  of  the  individual 
— the  only  difficulty  is  to  adapt  the  form  and  duration 
of  this  self-defence  to  the  form  and  intensity  (the 
motives,  conditions,  and  consequences)  of  the  action. 
Indefinite  seclusion,  therefore,  in  a  special  establish- 
ment is  inevitable  on  account  of  the  special  condition 
of  these  individuals. 

The  practical  considerations  of  social  defence  are 
so  strong  that  the  great  majority  of  classical  criminal 
experts  now  accept  criminal  lunatic  asylums,  in  spite 
of  their  manifest  contradiction  of  the  formal  theories 
of  moral  responsibility,  on  the  strength  of  which  these 
asylums  were,  and  still  are,  opposed  by  the  intransi- 
gents of  the  classice^l  school.     This  is  why  the  new 


PRACTICAL  REFORMS.  237 

Italian  penal  code,  in  spite  of  its  progressive  aim,  had 
not  the  courage  in  1889  to  adopt  them  frankly  ;  and 
in  the  definitive  text,  as  in  the  ministerial  draft,  it  took 
refuge  in  an  eclectic  arrangement  which  has  already 
met  with  a  crowd  of  obstacles,  due  to  the  vagueness 
of  the  principles  inspiring  the  code. 

These  criminal  lunatic  asylums  ought  to  be  of  two 
kinds,  differing  in  their  discipline,  one  for  the  insane 
authors  of  serious  and  dangerous  crimes,  such  as 
homicide,  incendiarism,  rape,  and  the  like ;  and  the 
other  for  slighter  crimes,  such  as  petty  theft,  violent 
language,  outrages  on  public  decency,  and  the  like. 
For  the  latter,  seclusion  should  be  shorter  than  for 
the  others.  Thus  in  England  convicts  are  sent  to  the 
State  Asylum  at  Broadmoor,  whilst  minor  offenders 
are  sent  to  a  county  asylum. 

Persons  thus  confined  should  be  (i)  prisoners 
acquitted  on  the  ground  of  insanity,  or  sentenced 
for  a  fixed  period,  at  the  preliminary  inquiry ;  (2) 
convicts  who  become  insane  during  the  expiation  of 
their  sentence  ;  (3)  insane  persons  who  commit  crimes 
in  the  ordinary  asylums  ;  (4)  persons  under  observa- 
tion for  weak  intellect  in  special  wards,  who  have 
been  put  on  their  trial,  and  given  grounds  for  sus- 
pecting madness. 

At  Broadmoor,  on  December  31,  1867,  there  were 
389  male  patients  and  126  female  ;  and  in  1883  there 
were  381  males  and  132  females,  thus  classified  : — 

Mad  Criminals.  Male.  FemaL'v 

Murder     ^     ..,     .„     ...  155  ...  85 

Attempted  murder  ...     .„     Ill  ...  18 

Parricide 7  ...  6 

Theft        «     ...  23  ...  3 

17 


238 


CRIMINAL   SOCIOLOGY. 


Mad  Criminals. 
Incendiarism    ... 
Military  offences 
Attempted  suicide 


Male. 
24 
21 

3 


Female. 
I 


In  Germany,  in  the  prison  at  Waldheim,  the  pro- 
portion of  mad  criminals  to  the  corresponding  classes 
of  ordinary  criminals  was  as  follows  : — 


Crimes. 

In  Prison 

Homicide,  actual  or  attempted 

74 

Murder  and  malicious  wounding 

51 

Highway  robbery  with  violence 

...         64 

Incendiarism      

219 

Rape    

52 

Indecent  assault 

...       299 

Perjury        

220 

Military  crimes 

23 

Crimes  against  property    

...    5,116 

Other  offences    

...       158 

Total     .„ 

...    6,276 

Percentage 
Insane. 
17-6 

9-8 

12-5 

6-8 
5-8 
57 
27 
217 
19 
06 

27 


That  is  to  say,  there  was  (i)  a  very  large  pro- 
portion of  madmen  amongst  the  military  offenders, 
which  may  point  to  the  effect  of  military  life,  or  else 
a  careless  selection  for  conscription,  or  both  causes 
taken  together  ;  and  (2)  a  greater  proportion  of  mad 
criminals  amongst  the  more  serious  offenders,  partly 
because  the  authors  of  crimes  of  violence  are  sub- 
jected to  more  strict  and  frequent  observation  for 
madness. 

It  seems  to  me  that  this  fact,  which  is  also  con- 
firmed by  the  figures  for  England,  is  the  most  cogent 
argument  in  favour  of  criminal  lunatic  asylums. 

For  born  criminals,  since,  as  Dr.  Maudsley  says, 
we  are  face  to  face,  if  not  exactly  with  a  degenerate 
species,  at   least  with   a   degenerate    variety  of  the 


PRACTICAL   REFORMS.  239 

human  species,  and  the  problem  is  to  diminish  their 
number  as  much  as  possible,  a  preliminary  question 
at  once  arises,  namely,  whether  the  penalty  of  death 
is  not  the  most  suitable  and  efficacious  form  of  social 
defence  against  the  anti-social  class,  when  they 
commit  crimes  of  great  gravity. 

It  is  a  question  which  for  a  century  past  has 
divided  the  criminal  experts  and  wearied  the  general 
public,  with  perhaps  more  sentimental  declamations 
than  positive  contributions ;  a  question  revived  by 
the  positive  school,  which,  however,  only  brought 
it  forward,  without  discussing  it,  at  the  first  Congress 
on  Criminal  Anthropology  at  Rome ;  whilst  it  has 
been  recently  settled  by  the  new  Italian  penal  code, 
which  is  the  first  code  amongst  the  leading  States  to 
decree  (January  i,  1890)  the  legal  abolition  of  the 
death  penalty,  after  its  virtual  abolition  in  Italy  since 
the  year  1876,  except  for  military  crimes. 

Amongst  the  classical  experts,  as  amongst  the 
positivists,  there  are  those  who  would  abolish  and 
those  who  would  retain  the  death  penalty ;  but  the 
disagreement  on  this  subject  is  not  equally  serious 
in  the  two  camps.  For  whilst  the  classical  aboli- 
tionists almost  all  assert  that  the  death  penalty  is 
inequitable,  the  positivists  are  unanimous  in  declaring 
it  legitimate,  and  only  a  few  contest  its  practical 
efficacy. 

It  seems  to  me  that  the  death  penalty  is  prescribed 
by  nature,  and  operates  at  every  moment  in  the  life 
of  the  universe.  Nor  is  it  opposed  to  justice,  for 
when  the  death  of  another  man  is  absolutely  neces- 
sary it  is  legitimate,  as  in  the  cases  of  lawful  self- 


240  CRIMINAL   SOCIOLOGY. 

defence,  whether  of  the  individual  or  of  society,  which 
is  admitted  by  classical  abolitionists  such  as  Beccaria 
and  Carrara. 

The  universal  law  of  evolution  shows  us  also  that 
vital  progress  of  every  kind  is  due  to  continual  selec- 
tion, by  the  death  of  the  least  fit  in  the  struggle  for 
life.  Now  this  selection,  in  humanity  as  with  the 
lower  animals,  may  be  natural  or  artificial.  It  would 
therefore  be  in  agreement  with  natural  laws  that 
human  society  should  make  an  artificial  selection, 
by  the  elimination  of  anti-social  and  incongruous 
individuals. 

We  ought  not,  however,  to  carry  these  conclusions 
too  far,  for  every  problem  has  its  relative  bearings, 
and  positive  observation,  unlike  logic,  does  not  admit 
simple  and  exact  solutions.  It  must  be  observed  that 
this  idea  of  artificial  selection,  though  true,  would  lead 
to  exaggerated  conclusions,  if  it  were  carried  into  the 
sociological  field  without  reserve,  and  without  the 
necessary  balance  between  the  interests  and  rights 
of  the  community  and  of  individuals.  If  this  idea 
were  taken  absolutely,  indeed,  it  would  render  legiti- 
mate and  even  obligatory  an  ultra-Spartan  elimina- 
tion of  all  children  born  abortive  or  incurably 
diseased,  or  anti-social  through  their  idiotcy  or  mental 
insanity. 

On  the  other  hand,  to  recognise  that  the  death 
penalty  may  be  legitimate  as  an  extreme  and  excep- 
tional measure  is  not  to  acknowledge  that  it  is  neces- 
sary in  the  normal  conditions  of  social  life.  Now  it 
cannot  be  questioned  that  in  these  normal  conditions 
society  may  defend  itself  otherwise  than  by  death,  as 


PRACTICAL   REFORMS.  24I 

by  perpetual  seclusion  or  transportation,  the  failure 
of  which,  by  the  escape  of  convicts,  is  too  rare  to  be 
decisive  against  it 

The  preventive  and  deterrent  efficacy  of  the  death 
penalty  is  very  problematical  when  we  examine  it 
not  by  our  own  impressions  as  average  human  beings, 
calmly  and  theoretically,  but  with  the  data  of  criminal 
psychology,  which  is  its  only  true  sphere  of  observa- 
tion. Every  one  who  commits  a  crime  is  either 
carried  away  by  sudden  passion,  when  he  thinks  of 
nothing,  or  else  he  acts  coolly  and  with  premedita- 
tion, and  then  he  is  determined  in  his  action,  not 
by  a  dubious  comparison  between  the  death  penalty 
and  imprisonment  for  life,  but  simply  by  a  hope  of 
impunity.  This  is  especially  the  case  with  born 
criminals,  whose  main  psychological  characteristic 
is  an  excess  of  improvidence,  combined  with  moral 
insensibility. 

If  a  convict  tells  us  that  he  fears  death,  this  merely 
means  that  he  has  the  momentary  impression,  which 
cannot,  however,  restrain  him  from  crime  ;  for  here 
again,  by  the  same  psychological  tendency,  he  will 
be  subject  only  to  the  criminal  temptation. 

And  if  it  is  true  that,  when  the  criminal  has  been 
tried  and  condemned,  he  fears  death  more  than  im- 
prisonment for  life  (always  excepting  condemned 
suicides,  and  those  who  by  their  physical  and  moral 
insensibility  laugh  at  death  up  to  the  foot  of  the 
scaffold),  it  is  none  the  less  necessary  to  try  and  to 
condemn  them. 

Indeed  statistics  prove  that  the  periodic  variations 
of  the  more   serious   crimes   is   independent  of  the 


242  CRIMINAL  SOCIOLOGY, 

number  of  condemnations  and  executions,  for  they 
are  determined  by  very  different  causes.  Tuscany, 
where  there  has  been  no  death  penalty  for  a  century, 
is  one  of  the  provinces  with  the  lowest  number  of 
serious  crimes  ;  and  in  France,  in  spite  of  the  increase 
of  general  crime  and  of  population,  charges  of  murder, 
poisoning,  parricide,  and  homicide,  dropped  from  560 
in  1826  to  430  in  1888,  though  the  number  of  execu- 
tions diminished  in  the  same  period  from  197  to  9. 

The  death  penalty  is  an  easy  panacea,  but  it  is  far 
from  being  capable  of  solving  a  problem  so  complex 
as  that  of  serious  crime.  The  idea  of  killing  off  the 
incorrigibles  and  the  born  criminals  is  easily  conceived, 
and  Diderot,  in  his  Letter  to  Landois,  maintained  that 
it  was  a  natural  consequence  of  the  denial  of  free-will, 
saying :  "  What  is  the  grand  distinction  between  man 
and  man  ?  Doing  good  and  doing  harm.  The  man 
who  does  harm  ought  to  be  extinguished,  not  pun- 
ished." But  as  against  this  too  facile  notion  we  must 
look  to  experience,  and  to  the  other  material  and  moral 
conditions  of  social  life,  for  the  necessary  balance  and 
completion. 

I  will  not  further  discuss  the  death  penalty,  for  it 
is  by  this  time  an  exhausted  question  from  the  intel- 
lectual standpoint,  and  has  passed  into  the  domain  of 
prejudice  for  or  against,  and  this  prejudice  is  con- 
cerned rather  with  the  more  or  less  repugnant  method 
of  execution  than  with  the  penalty  itself.  In  its 
favour  there  is  the  absolute,  irrevocable,  and  instan- 
taneous elimination  from  society  of  an  individual 
who  has  shown  himself  absolutely  unadaptable,  and 
dangerous  to  society.     But  I  hold  that,  if  we  would 


PRACTICAL  REFORMS.  243 

draw  from  the  death  penalty  the  only  positive  utility 
which  it  possesses,  namely,  artificial  selection,  then  we 
must  have  courage  enough  to  apply  it  resolutely  in  all 
cases  where  it  is  necessary  from  this  point  of  view,  that 
is  to  say,  to  all  born  criminals,  who  are  the  authors  of 
the  most  serious  crimes  of  violence.  In  Italy,  for 
example,  it  would  be  necessary  to  execute  at  least 
one  thousand  persons  every  year,  and  in  France 
nearly  two  hundred  and  fifty,  in  place  of  the  annual 
seven  or  eight. 

Otherwise  the  death  penalty  must  be  considered 
as  an  unserviceable  and  neglected  means  of  terror, 
merely  to  be  printed  in  the  codes  ;  and  in  that  case 
it  would  be  acting  more  seriously  to  abolish  it 

So  regarded  it  is  too  much  like  those  motionless 
scarecrows  which  husbandmen  set  up  in  their  fields, 
dotted  about  with  the  foolish  notion  that  the  birds 
will  be  frightened  away  from  the  corn.  They  may 
cause  a  little  alarm  at  first  sight ;  but  by  and  by  the 
birds,  seeing  that  the  scarecrow  never  moves  and 
cannot  hurt  them,  lose  their  fear,  and  even  perch  on 
the  top  of  it.  So  it  is  with  criminals  when  they 
see  that  the  death  penalty  is  never  or  very  rarely 
applied  ;  and  one  cannot  doubt  that  criminals  judge 
of  the  law,  not  by  its  formulation  in  the  codes,  but  by 
its  practical  and  daily  application. 

Since  the  deterrent  efficacy  of  punishments  in 
general,  including  the  death  penalty,  is  quite  insig- 
nificant for  the  born  criminals,  who  are  insensible  and 
improvident,  the  rare  cases  of  execution  will  certainly 
not  cure  the  disease  of  society.  Only  the  slaughter 
of  several  hundred  murderers  every  year  would  have 


244 


CRIMINAL  SOCIOLOGY. 


a  sensible  result  in  the  way  of  artificial  selection  ;  but 
that  is  more  easily  said  than  done.  And  1  imagine 
that,  at  normal  periods,  in  no  modern  and  civilised 
State  would  a  series  of  daily  executions  of  the  capital 
sentence  be  possible.  Public  opinion  would  not  endure 
it,  and  a  reaction  would  soon  set  in.^ 

In  a  manuscript  register  of  executions  in  the  Duchy 
of  Ferrara  between  970  and  1870,  I  found  that,  ex- 
cluding  the   nineteenth   century,   there    were    5,627 

'  In  every  case  I  think  that  executions  should  take  place  in  prison, 
and  by  means  of  a  poison  administered  as  soon  as  the  sentence  takes 
effect.  In  North  America  electricity  has  been  tried,  but  executions 
by  this  process  appear  to  be  as  horrible  and  repulsive  as  those  by  the 
guillotine,  the  garotte,  the  scaffold,  or  the  rifle.  (See  the  Aledico-Legal 
Journal  of  New  York.  March  and  September,  1889.)  Fiom  the 
'*  Summarised  Information  on  Capital  Punishment,"  published  by  the 
Howard  Association  in  1881,  I  take  the  following  figures  on  capital 
punishment  in  Europe  and  America  : — 

State. 
Austria  (1870-9)    ... 
France  (1870-9)    ... 
Spain  (1868-77)    ... 
Sweden  (1869-78).,, 
Denmark  (1868-77) 
Bavaria  (1870-9)  ... 
Italy  (1867-76)      .., 
Germany,  North  (1869-78) 
England  (1860-79) 
Ireland  (1860-79) 
Scotland  (1860-79) 

Australia  and  New  Zealand  (1870-9)...     453 
United  States,  about  2,500  murders  annually  ;  about  100 
executions  and  100  lynchings  annually. 

In  Finland,  between  1824  and  1880  there  was  no  execution.  In 
Holland,  Portugal,  Koumania,  and  Italy,  capital  punishment  is  abolished 
by  law  ;  and  in  Belgium  virtually.  Switzerland  also  has  abolished  it, 
but  a  few  cantons,  under  the  influence  of  a  few  atrocious  and  recurrent 
crimes,  revived  it  in  their  codes,  but  did  not  carry  it  out.  In  the  United 
States  it  has  been  abolished  in  Michigan,  Wisconsin,  Rhode  Island,  and 
Maine.  An  inquiry  into  the  legislation  and  statistics  relating  to  murder 
in  Europe  and  America  was  instituted  by  Lord  Granville  in  July,  1880, 
and  the  results  were  published  in  1881.  ("Reports  oa  the  Laws  of 
Foreign  Countries  respecting  Homicidal  Crime.") 


Death 

Sentences. 

Execution*. 

.      806        . 

16 

.      198        . 

93 

.      291 

.       126 

•        32        • 

3 

.       94       . 

I 

•     249       . 

7 

■     392       . 

34 

.     484       . 

I 

.     665       . 

.      372 

.      66      . 

.        36 

.      40      . 

IS 

•    453      • 

.      123 

PRACTICAL  REFORMS.  245 

executions  in  800  }ears  (3,981  for  theft,  and  1,009  ^o^ 
homicide),  that  is  an  average  of  700  in  each  century, 
in  the  city  of  Ferrara  alone.  And  at  Rome,  according 
to  the  records  of  the  Convent  of  St.  John  the  Be- 
headed, between  1500  and  1770  there  were  5,280 
executions,  or  1.955  i"  each  century,  in  the  city  of 
Rome  alone.  Now,  if  we  consider  the  proportion  of 
population  in  Ferrara  and  Rome  to  that  of  Italy  as  a 
whole,  we  reach  an  enormous  number  of  executions 
in  former  centuries,  which  can  scarcely  have  been 
fewer  than  four  hundred  every  year. 

These  were  serious  applications  of  the  death 
penalty,  to  which  we  certainly  owe  in  some  degree 
the  purification  of  society  by  the  elimination  of 
individuals  who  would  otherwise  have  swelled  their 
criminal  posterity. 

In  conclusion,  if  we  wish  to  treat  the  death  penalty 
seriously,  and  derive  from  it  the  only  service  of  which 
it  is  capable,  we  must  apply  it  on  this  enormous 
scale  ;  or  else,  if  it  is  retained  as  an  ineffectual  terror, 
we  should  be  acting  more  seriously  if  we  were  to 
expunge  it  from  the  penal  code,  after  excluding  it 
from  our  ordinary  practice.  And  as  I  shall  certainly 
not  have  the  courage  to  ask  for  the  restoration  of 
these  mediaeval  modes  of  extermination,  I  am  still, 
for  the  practical  considerations  above  mentioned,  a 
convinced  abolitionist,  especially  for  such  countries  as 
Italy,  where  a  more  or  less  artificial  and  superficial 
current  of  public  opinion  is  keenly  opposed  to  capital 
punishment. 

Setting  aside  the  death  penalty,  as  unnecessary  in 


246  CRIMINAL  SOCIOLOGY, 

normal  times,  and  inapplicable  in  the  only  proportions 
which  would  make  it  efficacious,  for  the  born  criminals 
who  commit  the  most  serious  crimes,  there  remains 
only  a  choice  between  these  two  modes  of  elimination 
— transportation  for  life  and  indefinite  seclusion. 

This  is  the  only  choice  for  the  positivists  ;  for  we 
cannot  attach  much  importance  to  the  opinion  of  the 
German  jurists,  Holtzendorff,  Geyer,  and  others,  who 
would  do  away  with  perpetual  imprisonment  alto- 
gether. Professor  Lucchini  took  up  this  theory  in 
Italy,  saying  that  the  personal  freedom  of  the  convict 
ought  to  be  limited  in  its  exercise,  but  not  suppressed 
as  a  right,  and  that  imprisonment  for  life  destroys 
"  the  moral  and  legal  personality  of  the  criminal  in 
one  of  its  most  important  human  factors,  the  sociable 
instinct."  He  added  that  punishment  "  ought  not  to 
become  exhausted  by  excess  of  duration." 

Surely  it  is  not  speaking  seriously  to  say  that  the 
right  of  the  individual  cannot  be  suppressed  if  neces- 
sity demands  it,  when  we  see  it  done  every  day  in 
cases  of  legitimate  self-defence  ;  and  that  punishment 
is  exhausted  by  excess  of  duration,  when  it  is  pre- 
cisely the  duration  of  banishment  from  one's  kind 
which  constitutes  the  only  real  efficacy  of  punish- 
ment ;  and  to  speak  of  the  sociable  instinct  in  con- 
nection with  the  most  anti-social  criminals. 

And  it  is  only  by  oblivion  of  the  elementary  and 
least  contestable  data  of  criminal  bio-psychology  that 
the  exclusion  of  all  life-punishments  can  be  main- 
tained, on  the  ground  that  this  perpetuity"  is  contrary 
to  the  reformative  principle  of  punishment,  to  the 
principle  that  punishment  ought  to  aim  not  only  at 


PRACTICAL  REFORMS.  247 

afflicting  the  prisoner,  but  also  at  arousing  in  him,  if 
possible,  the  moral  sense,  or  at  strengthening  him, 
and  opening  up  to  him  a  path  by  which  he  can  hope 
to  be  readmitted  into  society,  amended  and  rehabili- 
tated. Perpetuity  of  punishment  excludes  this  possi- 
bility." 

The  framers  of  the  Dutch  penal  code  replied  to 
these  observations  of  Professor  Pols,  first  in  the  name 
of  common  sense,  that  "  punishment  is  not  inflicted 
for  the  benefit  of  the  prisoner,  but  for  that  of  society," 
and  secondly,  with  something  of  irony,  that  "  even 
for  the  sake  of  the  abolition  of  capital  punishment, 
and  to  prevent  a  reaction  in  favour  of  this  punish- 
ment, we  must  uphold  the  right  of  shutting  up  for 
ever  the  few  malefactors  whose  release  would  be 
dangerous." 

It  is  entirely  futile  to  consider  the  amendment  of 
criminals  as  opposed  to  imprisonment  for  life,  when 
it  is  known  that  born  criminals,  authors  of  the  most 
serious  crimes,  for  whom  such  punishment  is  reserved, 
are  precisely  those  whose  amendment  is  impossible, 
and  that  the  moral  sense  attributed  to  them  is  only  a 
psychological  fallacy  of  the  classical  psychologist,  who 
attributes  to  the  conscience  of  the  criminal  that  which 
he  feels  in  his  own  honest  and  normal  conscience. 

But  it  is  easy  enough  to  see  that  this  opposition  to 
perpetual  detention,  though  it  has  remained  without 
effect,  as  being  too  doctrinaire  and  sentimental,  is 
only  a  symptom  of  the  historical  tendency  of  the 
classical  schools,  entirely  in  favour  of  the  criminal, 
and  always  tending  to  the  relaxation  of  punishments. 
The   interests  of  society  are  too  much  disregarded 


248  CRIMINAL  SOCIOLOGY, 

when  it  is  sought  to  pass  from  the  abolition  of  capital 
punishment  to  that  of  imprisonment  for  life.  If  the 
tendency  is  not  checked,  we  may  expect  to  see  some 
classical  expert  demanding  the  abolition  of  all 
punishment  for  these  unfortunate  criminals,  with 
their  delicate  moral  sensibilities  ! 

The  question,  therefore,  is  between  transportation 
or  indefinite  seclusion. 

Much  has  been  written  for  and  against  transporta- 
tion, and  there  was  a  lively  discussion  of  the  problem 
in  Italy,  some  twenty  years  ago,  between  M.  Beltrani 
Scalia,  a  former  director-general  of  prisons,  and  the 
advocates  of  this  form  of  elimination  of  criminals. 
Without  going  into  the  details  of  the  controversy,  it 
is  evident  that  the  experience  of  countries  like  Eng- 
land, which  for  a  long  time  transported  its  criminals 
at  a  cost  of  hundreds  of  millions,  and  then  abandoned 
the  practice,  is  in  itself  a  noteworthy  example. 

Yet  it  is  only  an  objection,  so  far  as  it  goes,  against 
transportation  as  formerly  practised,  that  is  to  say, 
with  enormous  prisons  built  in  distant  lands.  M. 
Beltrani  Scalia  justly  said  that  we  might  as  well 
build  them  at  home,  for  they  will  cost  less  and  be 
more  serviceable.  The  example  of  France  in  its 
practical  application  of  this  policy  is  not  encouraging. 

However,  there  is  in  transportation,  as  in  the  death 
penalty,  an  unquestionable  element  of  reason.  For 
when  it  is  perpetual,  with  very  faint  chances  of  return, 
it  is  the  best  mode  of  ridding  society  of  its  most 
injurious  factors,  without  our  being  compelled  to 
keep  them  in  those  compulsory  human  hives  which 
are  known  as  cellular  prisons. 


PRACTICAL  REFORMS.  249 

But  again,  there  is  the  question  of  simple  trans- 
portation, first  put  into  practice  by  England,  which 
consists  of  planting  convicts  on  an  island  or  desert 
continent,  with  the  opportunity  of  living  by  labour,  or 
else  of  letting  them  loose  in  a  savage  country,  where 
the  convicts,  who  in  civilised  countries  are  themselves 
half  savage,  would  represent  a  partial  civilisation,  and, 
from  being  highwaymen  and  murderers,  might  become 
military  leaders  in  countries  where,  at  any  rate,  the 
revival  of  their  criminal  tendencies  would  meet  with 
an  immediate  and  energetic  resistance,  in  place  of  the 
slow  machinery  of  our  criminal  trials. 

For  Italy,  however,  the  question  presents  itself  in  a 
special  form  ;  for  there  a  sort  of  internal  deportation, 
in  the  lands  which  are  not  tilled  on  account  of  the 
malaria,  would  be  far  more  serviceable.  If  the  dis- 
persion of  this  malaria  demands  a  human  hecatomb, 
it  would  evidently  be  better  to  sacrifice  criminals  than 
honest  husbandmen.  Transportation  across  the  sea 
was  very  difficult  for  Italy  a  few  years  ago,  especially 
in  view  of  the  lack  of  colonies  ;  for  then  there  was 
always  the  obstacle  of  which  Franklin  spoke  in 
reference  to  transpojcted  English  convicts,  in  his 
well-known  retort :  "  What  would  you  say  if  we 
were  to  transport  our  rattlesnakes  to  England  ? " 
But  since  Italy  has  had  her  colony  of  Erythrea  the 
idea  of  transportation  has  been  taken  up  again.  In 
May,  1890,  I  brought  forward  a  resolution  in  Parlia- 
ment in  favour  of  an  experimental  penal  colony  in 
our  African  dependencies.  The  proposal  found  many 
supporters,  in  spite  of  the  opposition  of  the  keeper  of 
the  seals,  who  forgot  that  he  had  written  in  his  report 


250  CRIMINAL   SOCIOLOGY. 

on  the  draft  penal  code  that  prisoners  might  also  be 
detained  in  the  colonies.  Soon  afterwards  the  pro- 
posal was  renewed  by  Deputy  De  Zerbi,  and  ac- 
cepted by  M.  Beltrani  Scalia,  director-general  of 
prisons. 

In  a  similar  manner  M.  Prins  declares  himself  in 
favour  of  transportation  for  Belgium,  since  the  consti- 
tution of  the  Congo  State. 

But  it  is  my  matured  opinion  that  transportation 
ought  not  to  be  an  end  in  itself.  The  penal  colony 
for  adults  ought  to  be  a  pioneer  of  the  free  agri- 
cultural colony.  The  problem  of  a  penal  colony  in 
our  African  possessions  cannot,  therefore,  be  solved 
in  advance  of  two  other  questions. 

Before  all,  we  must  see  whether  these  possessions 
offer  suitable  districts  for  agricultural  colonisation. 
And  secondly,  we  must  consider  whether  convicts 
would  not  cost  less  to  transport  into  districts  nearer 
home  which  need  to  be  cleared,  a  plan  which  would 
also  prevent  their  going  over  to  the  enemy,  becoming 
leaders  or  guides  of  the  barbarous  tribes  which  are  at 
war  with  us. 

In  any  case,  whether  we  decide  on  transportation 
to  the  interior  or  beyond  the  seas,  for  born  and 
habitual  criminals,  there  is  still  the  question  as  to  the 
form  of  seclusion. 

In  this  connection  the  idea  has  been  suggested  ot 
•*  establishments  for  incorrigibles,"  or  hardened  crimi- 
nals, wherein  should  be  confined  for  life,  or  (the  same 
thing  in  this  case)  for  an  indefinite  period,  born  crimi- 
nals who  have  committed  serious  crimes,  habitual 
criminals,  and  confirmed  recidivists. 


PRACTICAL   REFORMS.  2$ I 

The  congenital  character  and  hereditary  transmis- 
sion of  criminal  tendencies  in  these  individuals  fully 
justify  the  words  of  Quetelet,  that  "  moral  diseases 
are  like  physical  diseases  :  they  are  contagious,  or 
epidemic,  or  hereditary.  Vice  is  transmitted  in  some 
families  in  the  same  way  as  scrofula  or  consumption. 
The  greater  number  of  crimes  come  from  a  compara- 
tively few  families,  which  need  a  special  supervision, 
an  isolation  like  that  which  we  impose  on  sick  persons 
suspected  of  carrying  the  germs  of  infection."  So 
Aristotle  speaks  of  a  man  who,  being  accused  of 
beating  his  father,  answered  :  "  My  father  beat  my 
grandfather,  who  used  to  beat  his  father  cruelly  ;  and 
you  see  my  son — before  he  is  grown  up  he  will  fly 
into  passions  and  beat  me."  And  Plutarch  added  to 
this  :  "  The  sons  of  vicious  and  corrupt  men  reproduce 
the  very  nature  of  their  parents." 

This  is  the  explanation  of  Plato's  idea,  who,  "  ad- 
mitting the  principle  that  children  ought  not  to  suffer 
for  the  crimes  of  their  parents,  yet,  putting  the  case 
of  a  father,  a  grandfather,  and  a  great-grandfather 
who  had  been  condemned  to  death,  proposed  that 
their  descendants  should  be  banished,  as  belonging  to 
an  incorrigible  family."  Carrara  called  this  a  mis- 
taken idea,  but  it  seems  to  us  to  be  substantially  just. 
It  may  be  remembered  that  when  De  Metz  in  1839 
founded  his  agricultural  penal  colony  at  Metray,  once 
celebrated  but  now  in  decay  (for  the  whole  success  of 
these  foundations  depends  on  the  exceptional  psycho- 
logical qualities  of  their  governors),  out  of  4,454 
children,  871,  or  20  per  cent,  were  the  children  of 
convicts.    We  quite  agree  with  Crofton's  proposal  to 


252  CRIMINAL   SOCIOLOGY, 

place  the  children  of  convicts  in  industrial  schools  of 
houses  of  correction. 

A  special  establishment  for  the  perpetual  or  indefi- 
nite seclusion  of  incorrigible  criminals  has  been  pro- 
posed or  approved  in  Italy  by  Lombroso,  Curcio, 
Barini,  Doria,  Tamassia,  Garofalo,  Carelli  ;  in  France 
by  Despine,  Labatiste,  Tissot,  Leveill6 ;  in  Russia 
by  Minzloff;  in  England  by  May;  in  Germany  by 
Kraepelin  and  Lilienthal ;  in  Austria  by  Wahlberg ; 
in  Switzerland  by  Guillaume  ;  in  America  by  Wines 
and  Wayland ;  in  Holland  by  Van  Hamel ;  in 
Portugal  by   Lucas  ;  &c. 

But  I  believe  that,  in  order  to  establish  the  fact  of 
incorrigibility,  the  number  of  relapses  should  vary  in 
regard  to  different  criminals  and  crimes.  Thus,  for 
instance,  in  the  case  of  murders,  especially  by  born 
criminals,  the  first  crime  should  lead  to  an  order  for 
imprisonment  for  life.  In  the  case  of  less  serious 
crimes,  such  as  rape,  theft,  wounding,  swindling,  &c., 
from  two  to  four  relapses  should  be  necessary  before 
the  habitual  criminal  is  sentenced  to  such  imprison- 
ment. 

These  ideas  are  approximately  carried  out,  especi- 
ally in  the  countries  which,  having  made  no  great 
advance  in  the  criminal  sciences,  meet  with  less  of 
pedantic  opposition  to  practical  reforms. 

Thus  we  find  that  France,  after  the  proposals  of 
Michaux,  Petit,  and  Migneret,  and  especially  after 
the  advocacy  of  M.  Reinach,  followed  by  several 
publications  of  a  like  kind,  agreed  to  the  law  of 
1885  on  the  treatment  of  recidivism. 

Messrs.   Murray  Brown  and   Baker  spoke   at  the 


PRACTICAL   REFORMS.  253 

Prison  Congress  at  Stockholm  and  at  the  Soci^t6 
G^n^rale  des  Prisons  at  Paris,  of  the  system  of 
cumulative  and  progressive  sentences  adopted, 
though  not  universally,  in  England  with  respect  to 
hardened  criminals.  The  term  of  imprisonment  is 
increased,  almost  regularly,  on  each  new  relapse. 
This  is  the  system  which  had  already  been  suggested 
by  Field  and  Walton  Pearson  at  the  Social  Science 
Congress  in  October,  1871,  and  subsequently  by  Cox 
and  Call,  who  was  head  of  the  police  at  Glasgow,  at 
the  Congress  of  1874,  and  which,  as  Mr.  Movatt 
pointed  out,  was  adopted  in  the  Indian  penal  code, 
and  had  been  established  in  Japan  by  a  decree 
fixing  perpetual  imprisonment  after  the  fourth 
relapse. 

The  delegate  from  Canada  at  the  Prison  Congress 
at  Stockholm  testified  that  short  terms  of  imprison- 
ment increased  the  number  of  offences.  "  After  a 
first  sentence  many  offenders  in  this  class  become 
professional  criminals.  Professional  thieves,  who  are 
habitual  offenders,  ought,  with  few  exceptions,  to  be 
sentenced  to  imprisonment  for  life,  or  for  a  term 
equivalent  to  the  probable  remainder  of  their  life." 
The  draft  Russian  code,  in  1883,  provides  that,  "If 
it  is  found  that  the  accused  is  guilty  of  several 
offences,  and  that  he  has  committed  them  through 
habitual  criminality,  or  as  a  profession,  the  court, 
when  deciding  upon  the  punishment  in  relation  to 
the  different  crimes,  may  increase  it,"  &c.  And  the 
Italian  penal  code,  though  with  much  timidity,  has 
decreed  a  special  increase  of  punishment  for 
prisoners  "  who  have  relapsed  several  times." 
18 


254  CRIMINAL   SOCIOLOGY. 

Quite  recently,  Senator  B^renger  introduced  a 
measure  in  France  "  on  the  progressive  increase  of 
punishment  in  cases  of  relapse,"  which  became  law 
on  March  26,  1891,  under  the  title  of  "the  modifica- 
tion and  increase  of  punishments." 

It  is  therefore  very  probable  that  even  the  classical 
criminalists  will  end  by  accepting  the  indefinite 
seclusion  of  hardened  criminals,  as  they  have  already 
come  to  accept  criminal  lunatic  asylums,  though  both 
ideas  are  opposed  to  the  classical  theories. 

This  is  so  true  that  at  the  Prison  Congress  at  St. 
Petersburg  in  1889  the  question  was  first  propounded 
"  whether  it  can  be  admitted  that  certain  criminals 
should  be  regarded  as  incorrigible,  and,  if  so,  what 
means  could  be  employed  to  protect  society  against 
this  class  of  convicts."  And  speaking  as  a  delegate 
from  the  Law  Society  of  St.  Petersburg,  M.  Spaso- 
vitch  acknowledged  that  "  this  question  bore  the 
stamp  of  its  origin  on  its  face.  Of  all  the  questions 
in  the  programme,  it  seemed  to  be  the  only  one 
directly  inspired  by  the  principles  of  the  new  positive 
school  of  criminal  anthropology,  whose  theories, 
propagated  beyond  the  land  of  their  birth  in  Italy, 
tended  to  a  radical  reform  in  science  as  well  as  in 
legislation,  in  the  penal  law  as  well  as  in  procedure, 
in  ideas  of  crime  as  well  as  in  the  modes  of  repres- 
sion." 

The  Congress,  in  spite  of  some  expressions  of 
reserve,  as  when  Madame  Arenal  platonically  ob- 
served that  "an  uncorrected  criminal  is  not  synony- 
mous with  an  incorrigible  criminal,"  adopted  the 
following  resolution  : — "  Without  admitting  that  from 


PRACTICAL  REFORMS.'  2$$ 

the  penal  and  penitentiary  point  of  view  there  are 
any  absolutely  incorrigible  criminals  " — which  is  pure 
pedantry — "  yet  since  experience  shows  that  there 
are  in  fact  individuals  who  resist  the  combined  action 
of  punishment  and  imprisonment " — a  notable  admis- 
sion ! — "  and  who  habitually  and  almost  profession- 
ally renew  their  violation  of  the  laws  of  society,  this 
section  of  the  Congress  is  unanimously  of  opinion 
that  it  is  necessary  to  adopt  special  measures  against 
such  individuals," 

Similarly  the  International  Union  of  Penal  Law, 
in  its  session  at  Berne  (August,  1890),  expressed  the 
opinions  of  the  majority  in  the  following  terms: — 
"  There  are  malefactors  for  whom,  in  view  of  their 
physical  and  moral  condition,  the  constant  applica- 
tion of  ordinary  punishments  is  inadequate.  In  this 
class  are  specially  included  the  hardened  recidivists, 
who  ought  to  be  considered  as  degenerate  criminals, 
or  criminals  by  profession.  Malefactors  ought  to  be 
subjected,  according  to  the  degree  of  their  degenera- 
tion, or  of  the  danger  which  they  threaten,  to  special 
measures,  framed  with  the  purpose  of  preventing 
them  from  inflicting  harm,  and  of  amending  them  if 
possible."  And  in  the  session  at  Christiania  (August, 
1 891),  after  the  remarkable  contribution  of  Van 
Hamel,  the  Union,  after  rejecting  the  proposition  of 
Felisch,  which  spoke  of  "  the  uncorrected "  in  place 
of  the  "  incorrigible,"  unanimously  approved  the 
conclusions  of  Van  Hamel : — "  With  a  view  to  the 
more  complete  study  of  the  character  and  injurious 
influence  of  habitual  offenders,  notably  of  such  as 
are  incorrigible  (a  study  which  is  absolutely  indis- 


256  CRIMINAL   SOCIOLOGY. 

pensable  for  legislation),  the  Union  instructs  its 
officers  to  urge  upon  the  various  Governments  the 
great  importance  of  statistics  of  recidivism  which 
shall  be  detailed,  precise,  uniform,  and  adapted 
for  comparative  study.  For  incorrigible  habitual 
offenders  it  is  absolutely  necessary  that  the  trial  on 
the  last  charge  shall  not  definitely  determine  the 
treatment  of  the  offender,  but  that  the  decision  shall 
be  carried  on  to  a  further  inquiry,  which  shall  have 
regard  to  the  offender  personally,  to  his  past,  and  to 
his  conduct  during  a  fixed  period  of  observation. 

It  is  now  necessary  to  inquire  what  form  the  per- 
petual or  indefinite  segregation  of  the  criminal  should 
assume. 

Two  great  innovations  in  regard  to  prisons,  as 
M.  Tarde  observes,  have  been  made  or  developed 
within  the  past  century,  which  are  not  yet  adopted 
in  every  country  :  penal  colonies,  whereof  transporta- 
tion is  only  a  factor,  and  the  prison  cell.  The  cell 
has  assumed  a  leading  position  since  it  was  brought 
over  from  America  to  Europe,  where,  however,  the 
cellular  prisons  of  St.  Michael  at  Rome,  and  of  Gand, 
had  preceded  it 

The  cellular  system,  a  product  of  the  reaction 
against  the  enormous  physical  and  moral  putrefaction 
of  the  inmates  of  common  prisons  and  labour  estab- 
lishments, may  have  had,  and  doubtless  still  has 
many  advocates,  amongst  other  reasons  for  the  spirit 
of  pietism  and  religious  penitence  which  always  goes 
with  it ;  but  it  is  open  to  strong  criticism. 

There  has  already  been,  amongst  the  same  prison 


PRACTICAL   REFORMS.  257 

experts,  a  certain  retrogressive  movement  in  regard 
to  isolation.  Absolute  and  continued  isolation, 
indeed,  both  by  day  and  by  night  ("solitary  con- 
finement ")  was  at  first  recommended,  even  to  the 
introduction,  grotesque  in  spite  of  good  intentions, 
of  hoods  and  masks  for  the  prisoners,  a  mediaeval 
reminiscence  almost  parallel  with  the  Brothers  of 
Pity  in  some  Italian  towns,  for  help  to  the  wounded. 
Presently  it  was  seen  that  this  sort  of  thing  certainly 
could  not  assist  in  the  amendment  of  the  guilty,  and 
then  isolation  was  relaxed  (still  making  it  applicable 
both  by  day  and  by  night)  with  visits  to  prisoners  by 
the  chaplain,  governors,  and  representatives  of  vigi- 
lance and  prisoners'  aid  societies.  This  is  called 
"  separate  confinement."  After  this  it  was  recog- 
nised that  the  real  need  for  isolation  was  at  night, 
and  then  the  Auburn  system  was  arrived  at:  isolation 
in  cells  by  night,  with  daily  labour  in  common,  with 
an  obligation  (which  cannot  be  enforced)  ot  silence. 
And  finally,  seeing  that  in  spite  of  the  threefold 
panacea  of  every  prison  system  (isolation,  work,  and 
instruction,  especially  religious  instruction)  relapses 
still  increased,  it  was  understood  that  it  might  not 
be  very  useful  to  subject  a  man  for  months  or  years 
to  the  monastic  life  of  Trappist  brothers,  in  these 
monstrous  human  hives  (which  Bentham  brought  to 
the  notice  of  the  French  Constituent  Assembly 
under  the  name  of  "panopticons"),  and  to  discharge 
him  from  prison  at  the  end  of  his  term,  and  plunge 
him  into  all  the  temptations  of  an  atmosphere  to 
which  his  lungs  had  become  disaccustomed. 

Then   the   "  progressive   system  "  was  introduced, 


258  CRIMINAL   SOCIOLOGY. 

first  in  England,  where  it  was  devised  by  Macono- 
chie,  next  in  Ireland,  which  has  given  it  a  name, 
alternated  with  that  of  Sir  W.  Crofton.  This  is 
the  most  symmetrically  perfect  machinery,  though 
reminding  one  somewhat  of  a  company  of  marion- 
ettes. It  confirms  what  was  said  by  Haeckel,  that 
the  actual  is  a  summary  of  the  moods  of  aspiration, 
for  it  precisely  sums  up  the  systems  which  preceded 
it,  each  of  which  constitutes  a  phase  of  the  pro- 
gressive system.  There  is  first  of  all  a  period  of 
brotherly  charity — absolute  isolation  for  the  prisoner 
to  fall  back  upon  his  conscience,  or  to  listen  to  the 
voice  of  remorse,  or  to  receive  an  impression  of 
devotion  and  fear.  After  this  comes  the  Auburn  Ian 
phase,  of  isolation  by  night  and  labour  (when  labour 
is  accorded)  by  day,  with  the  constraint  of  silence. 
Then  an  intermediary  period  in  the  agricultural 
colony  or  labour-gang  outside  the  prison,  like  a 
period  of  convalescence,  to  accustom  the  lungs  to 
the  keen  air  of  liberty.  This  is  the  phase  added  by 
Sir  W.  Crofton  to  the  English  system.  Lastly  comes 
the  period  of  conditional  release  (on  ticket  of  leave), 
whereby  the  last  portion  of  the  punishment  is  re- 
mitted, and  will  count  as  expiated  if  during  the  time 
of  liberation,  and  for  a  succeeding  period,  the  convict 
does  not  commit  another  crime. 

The  progressive  or  retrogressive  passage  from  one 
phase  to  another  is  made  by  a  sort  of  automatic 
regulator,  depending  on  the  number  of  marks  gained 
or  lost  by  the  prisoner  through  his  good  or  bad 
behaviour,  to  which  we  know  the  moral  or  psycho- 
logical value  to  be  attached — a  value  purely  negative. 


PRACTICAL   REFORMS.  259 

This  progressive,  gradual,  or  Irfsh  system  has 
obtained  a  supremacy  in  Europe,  so  that  even 
Belgium,  the  classic  land  of  the  cellular  system, 
reconsidered  the  ideas  which  it  had  based  on  daily 
experience,  and  was  the  first  continental  country  to 
introduce  conditional  sentences  (in  1888),  which  are 
the  fruit  of  short  sentences  and  cellular  punishments. 

I  do  not  deny  that  this  progressive  system  is 
better  than  the  others,  though  we  must  not  forget 
that  the  almost  miraculous  effects  of  amendment 
and  decrease  of  recidivism  (which  indeed  are  claimed 
for  every  new  system,  only  to  be  disproved  later  on) 
were  due  in  Ireland  to  the  wholesale  emigration  of 
those  conditionally  released  to  North  America — an 
emigration  amounting  to  46  per  cent,  of  the 
prisoners  released.  Nor  must  we  forget  that  this 
system,  which  requires  a  trained  staff  of  officers,  is 
less  difficult  to  work  in  countries  where,  as  in  Ireland, 
there  are  only  a  few  hundred  prisoners  ;  but  it  would 
be  much  more  difficult  in  Italy  or  France,  where  the 
prisoners  are  numbered  by  tens  of  thousands.  In 
these  countries,  accordingly,  the  system  will  not  be 
practical  unless  the  principle  of  classifying  prisoners 
in  biological  and  psychological  categories  is  con- 
joined with  it ;  for  without  this  we  shall  not  get  rid 
of  the  impersonal  system  which  is  the  vice  of  our 
present  penal  law,  and  under  which,  even  in  our 
prison  administration,  we  treat  the  prisoner  as  a 
mere  symbol,  to  which  we  can  apply  the  three  con- 
ventional rules  of  the  cell,  hard  labour,  and  instruc- 
tion. 

But  I  am  strongly  opposed  to,  or  accept  simply  as 


26o  CRIMINAL   SOCIOLOGY. 

accessory  (even  for  the  seclusion  of  prisoners  before 
trial,  after  the  preliminary  examination),  cellular 
isolation  by  itself,  which  has  reached  the  height  of 
absurdity  and  inhumanity  in  cases  of  imprisonment 
for  life. 

As  Mancini  said  in  1876,  discussing  the  draft  of 
the  Italian  penal  code,  "  the  punishment  of  hard 
labour  for  life,  which  is  substituted  in  the  draft  for  the 
capital  sentence,  differs  substantially  in  its  severity  of 
privation  and  misery  from  all  other  modes  of  im- 
prisonment. It  must  be  undergone  in  one  or  two 
special  prisons  to  be  erected  within  the  country.  It 
would  be  the  saddest  and  most  terrible  thing  which 
the  imagination  of  man  could  conceive.  These  tombs 
of  the  living,  whom  society  has  rejected  for  ever, 
unlike  all  other  prisons,  will  condemn  their  inmates 
to  continuous  solitary  immurement  in  cells,  and  to  a 
life  which  may  be  worse  than  death  itself  .  .  .  This 
most  wretched  condition,  which  the  free  man  cannot 
realise  without  horror,  is  to  last  ten  years  ;  and  it  is 
not  to  be  in  the  power  of  man  to  bring  it  to  an  end 
sooner,  if  the  prisoner,  broken  down  by  physical  weak- 
ness, or  threatened  by  loss  of  reason,  cannot  endure  it 
any  longer," 

After  this  description,  I  am  not  sorry  that  I  de- 
nounced the  cellular  system  as  one  of  the  madnesses 
of  the  nineteenth  century. 

This  useless,  stupid,  inhuman,  costly  "  tomb  of  the 
living"  must  be  repudiated,  even  when  reduced  to  its 
lowest  terms  by  the  new  Italian  code,  wherein  Parlia- 
ment, accepting  part  of  my  amendment,  fixes  the  term 
of  absolute  seclusion  at  seven  years. 


PRACTICAL  REFORMS.  261 

It  will  be  seen  by  this  description  of  cellular  im- 
prisonment that  the  classical  criminal  and  prison 
experts  have  logically  arrived  at  the  conclusion  that 
perpetual  punishment  should  be  abolished ;  and  this 
renders  rec'divism  possible  even  in  murder.  But  it  is 
clear  that  what  we  ought  to  abolish  is  not  perpetual 
separation,  but  only  the  stupidly  harsh  form  of  isola- 
tion in  cells — and  this  not  only  in  life  sentences,  but 
in  all  sentences. 

Cellular  imprisonment  is  inhuman,  because  it  blots 
out  or  weakens,  in  the  cases  of  the  least  degenerate 
criminals,  that  social  sense  which  was  already  feeble 
in  them,  and  also  because  it  inevitably  leads  to  mad- 
ness or  consumption  (by  onanism,  insufficient  move- 
ment, air,  &c.).  Hence  it  drives  the  prison  authorities, 
in  order  to  avoid  these  disastrous  consequences,  to  the 
injustice  of  building  cells  for  murderers  which  are 
decidedly  comfortable,  and  consequently  a  mockery 
of  the  honest  wretchedness  of  the  cottages  and  garrets 
of  the  poor.  The  treatment  of  mental  diseases  recog- 
nises a  special  form  of  insanity  under  the  name  of 
prison  madness. 

Cellular  imprisonment,  in  temporary  or  indefinite 
sentences,  can  do  nothing  for  the  amendment  of  the 
guilty,  especially  because,  when  we  do  not  amend  the 
social  environment,  it  is  useless  to  lavish  care  on  our 
prisoners  if,  as  soon  as  they  quit  prison,  they  must 
return  to  the  same  conditions  which  led  them  into 
crime.  No  adequate  social  prevention  can  in  any  way 
be  provided  by  the  more  or  less  arcadian  devices  of 
the  prisoners'  aid  societies.  The  chief  mistake  of  the 
prison  experts  has  been  to  concentrate  their  attention 


262  CRIMINAL   SOCIOLOGY, 

exclusively  on  the  cell  and  in  the  cell,  forgetting  the 
external  factors  of  crime  ;  so  that,  by  a  familiar 
psychological  process,  the  cell  has  become  for  prison 
experts  what  money  is  to  the  avaricious  :  it  has  ceased 
to  be  a  means,  and  has  become  an  end  in  itself. 

Again,  the  cellular  system  is  ineffectual  because  the 
very  isolation  which  was  its  original  object  is  incap- 
able of  realisation.  Prisoners  find  a  thousand  means 
of  carrying  on  communication  with  each  other,  during 
their  walks,  or  by  writing  on  the  leaves  of  books  lent  to 
them  to  read,  or  by  knocking  on  their  walls  according 
to  a  conventional  alphabet,  or  by  writing  in  the  sand, 
or  by  using  the  drains  as  telephonic  receivers,  as  was 
done  in  the  cellular  prisons  of  Mazas,  Milan,  &c. 
Plain  proofs  of  this  may  be  found  in  Lombroso's 
*'  Les  Palimpsestes  des  Prisons."  "  The  public,  and 
even  well-informed  persons,  honestly  believe  that  the 
cellular  prison  is  a  dumb  and  paralytic  thing,  without 
tongue  or  hands,  simply  because  the  law  has  ordered 
silence  and  inactivity.  But  as  no  decree,  however 
vigorous,  can  counteract  the  nature  of  things,  so  this 
organism  speaks,  moves,  occasionally  wounds  or  slays, 
in  spite  of  all  the  decrees.  Only,  as  always  happens 
when  a  necessity  of  humanity  is  opposed  by  a  law,  it 
acts  by  less  known,  underground  and  hidden  means." 

Moreover,  the  cellular  system  is  unequal  in  its  ap- 
plication, for  difference  of  race  has  much  to  say  to  it, 
and  in  fact  it  is  a  clumsy  machinery  of  the  northern 
races,  repugnant  to  those  of  the  south,  more  depen- 
dent on  the  open  air  and  light.  Apart  from  that. 
Isolation  has  very  different  effects  amongst  people  of 
the  same  nation,  accprding  to  the  different  vocations 


PRACTICAL   REFORMS,  263 

of  the  prisoners,  especially  of  occasional  offenders.  In 
this  connection  the  testimony  of  Faucher,  Ferrus,  and 
Tarde  is  thoroughly  just,  that  in  prison  administration 
we  ought  to  observe  a  distinction  between  dwellers  in 
town  and  country.^ 

Again,  the  cellular  system  is  too  costly  to  be  adopted 
as  the  only  form  of  imprisonment — which,  however,  is 
enacted  in  the  Italian  penal  code,  the  French  law  of 
1875,  and  elsewhere. 

And  it  is  just  by  reason  of  the  enormous  expen- 
diture on  vast  prisons  that  the  grievous  and  mis- 
chievous contrast  arises  between  the  comforts 
provided  for  murderers  and  men  guilty  of  arson  in 
their  cells  and  the  privations  to  which  the  honest 
poor  are  exposed  in  hospitals,  poorhouses,  town 
garrets,  country  hovels,  and  barracks.  One  of  the 
most  significant  results  which  I  noticed  at  the  exhi- 
bition of  various  plans  of  cells  in  connection  with  the 
Prison  Congress  at  Rome  in  1885  was  that  it  demon- 
strated to  the  general  public  how  the  cellular  system 
treats  prisoners  (whether  before  trial  or  after  sentence) 
better  than  the  poor,  who  continue  to  be  honest  in 
spite  of  their  wretchedness.^ 

'  Yet  the  question  whether  the  cellular  system  should  be  modified  in 
accordance  with  the  nationality,  social  condition,  and  sex  of  criminals, 
which  has  not  been  brought  forward  since  the  Prison  Congress  at  Stock- 
holm, was  there  decided  by  the  following  resolution  : — '*  The  cellular 
system,  where  it  is  in  operation,  may  be  applied  without  distinction  of 
lace,  social  condition  (as  regards  townsmen  or  rural  population),  or 
sex,  provided  that  the  authorities  have  regard  to  these  special  conditions 
in  matters  of  detail.  Exception  may  be  made  in  respect  of  the  young, 
and  if  cellular  discipline  is  applied  to  them  also,  it  should  be  in  such  a 
way  as  not  to  prejudice  their  physical  and  moral  development." 
("Proceedings,"  1878,  pp.  303,  617.) 

'  Even  prison  experts  have  been  concerned  by  the  vast  expense  of  the 
cellular  system,  and  the  following  question  was  brought  forward  at  the 


Z6^  CRIMINAL  SOCIOLOGY. 

In  Germany,  as  well  as  in  France  and  Italy,  legis- 
lation has  ordained,  by  codes  and  special  laws,  the 
cellular  system  for  all  punishment  by  imprisonment ; 
but  fortunately  the  system  has  not  yet  been  adopted, 
thanks  to  its  enormous  cost.  So  that  we  have  the 
further  absurdity  of  codes  based  on  prison  systems 
which  have  no  actual  existence.  And  since  criminals 
have  their  part  in  the  law,  not  as  it  is  written  but  as 
it  is  carried  out,  the  result  is  naturally  disastrous. 

Thus  the  cellular  system  bears  hard  upon  the 
honest  classes,  both  by  its  enormous  cost,  under  the 
form  of  taxation,  and  by  competition  with  free  and 
honest  labour.  The  competition  is  moral  in  the  first 
place,  for  the  criminal  is  always  assured  of  daily  work, 
lodgings,  and  food,  whilst  the  honest  workman  is 
assured  of  neither.  Even  the  economic  competition, 
though  not  extensive  when  we  take  the  totals  of  free 
workmen  and  prisoners,  is  still  very  keen  in  particular 
places  and  for  particular  industries,  whilst  prison 
labour  never  indemnifies  the  State  for  its  expenditure; 
for  clearly  with  cellular  isolation  it  is  impossible  to 
organise  important  and  profitable  industry.  It  is  the 
small  industries,  such  as  shocmaking  and  carpentry, 
which  crush  the  same  free  industries  all  round  the 
prison,  for  they  cannot  stand  against  the  artificial 
competition  created  by  the  nominal  wages  of  the 
prison    hands.       Though    for    moral    and    financial 

Conjjress  iat  Rome  : — "  What  modifications  would  be  possible,  in  ac- 
cordance with  recent  experience,  in  the  construction  of  cellular  jirisons, 
so  as  to  render  it  more  simple  and  less  costly,  without  detriment  to  the 
necessary  conditions  of  a  sound  and  intelligent  application  of  the 
system?"  Detailed  recommendations  were  agreed  to  on  the  motion  of 
M.  Herbette  ;  but  the  system  is  unchanged,  with  requirements  which 
can  be  only  very  slightly  reduced. 


PRACTICAL   REFORMS.  2(S$ 

reasons  the  convicts  must  work,  it  is  evident  that  on 
these  grounds  we  cannot  accept  the  cellular  system  as 
a  pattern  of  prison  organisation. 

It  is  quite  sufficient,  in  prisons  for  the  segregation 
of  criminals,  to  provide  for  isolation  by  night,  which 
requires  buildings  far  more  simple  and  less  costly  than 
those  of  the  cellular  prisons. 

Work  in  the  open  air  is  the  only  useful  basis  of 
organisation  for  convict  prisons. 

Air,  light,  movement,  field  labour,  especially  in 
southern  counties  and  for  the  majority  of  prisoners, 
who  are  rural — these  are  the  only  physical  and  moral 
disinfectants  possible  for  prisoners  not  entirely  de- 
generate, or  likely  to  prevent  at  least  the  absolute 
brutalisation  of  the  incorrigible,  by  giving  them 
healthy  and  more  remunerative  work. 

The  penal  agricultural  colony,  in  lands  which  need 
clearing,  is  the  best  for  adults,  passing  from  the  least 
to  the  most  healthy  according  to  the  categories  of 
criminals — born,  habitual,  occasional — and  according 
to  the  gravity  of  the  crimes  committed.  To  this  may 
be  added,  for  convicts  less  capable  of  restoration 
to  social  life,  labour  in  mines,  especially  when  the 
mines  are  State  property.  What  I  have  said  of 
malaria  I  say  of  fire-damp :  it  is  much  better  that  these 
should  kill  off  criminals,  than  honest  workmen. 

The  penal  agricultural  colony  in  lands  already 
cultivated  is  best  for  children  and  young  people. 

This  is  the  ideal  and  the  typical  form  of  segregation 
for  criminals,  against  whom  it  would  not  be  sufficient 
to  exact  strict  reparation  of  damage,  on  the  principles 
already  set  forth. 


266  CRIMINAL   SOCIOLOGY, 

Wherever  there  is  a  crowding  of  humanity,  there  is 
human  fermentation  and  putrefaction.  Only  labour 
in  the  open  air  will  secure  physical  and  moral  health. 
And  if  agricultural  work  would  be  less  fitted  for 
criminals  from  the  towns,  there  is  no  reason  why  an 
agricultural  colony  should  not  make  itself  as  far  as 
possible  self-sufficing  by  means  of  workshops  where 
prisoners  could  ply  the  trade  to  which  they  were  ac- 
customed when  at  liberty.  For  town  convicts  without 
a  trade,  such  as  vagabonds,  beggars,  and  the  like,  on 
the  ground  of  their  muscular  incapacity  for  hard  and 
regular  work,  an  agricultural  colony  is  still  the  most 
fit,  for  it  provides  light  and  varied  occupations,  as  the 
agricultural  colonies  of  Holland,  Belgium,  and  Austria 
bear  witness. 

The  same  evolution  will  take  place  in  regard  to  the 
segregation  of  criminals  as  in  regard  to  the  seclusion 
of  the  insane  ;  first,  hospitals  and  prisons,  with  a 
terrible  communion  of  corruption  in  both  cases  ;  then 
barrack  life,  in  asylums  or  penitentiaries,  vast  and 
isolated  ;  lastly,  for  the  insane,  a  system  of  so-called 
village  asylums,  and  even  a  free  colony  for  harmless 
idiots  who  can  be  put  to  agricultural  work  and  minor 
trades,  as  at  Gheel  in  Belgium.  Similarly  for  crimi- 
nals, the  sanitary  "elbow  room"  of  agricultural  colonies 
will  be  substituted  for  the  infectious  barrack-life  of  the 
great  prisons. 

As  for  habitual  criminals,  their  anthropological 
characteristics  remind  us  that  we  must  distinguish 
between  the  two  crises  of  their  criminal  activity,  and, 
as  a  consequence,  between  the   methods  of  defence 


PRACTICAL  REFORMS.  267 

against  them.  That  is  to  say,  we  must  distinguish 
between  the  initial  moment  at  which  they  commit 
their  first  crime  and  the  subsequent  period  in  which 
they  become  habitual  offenders,  recidivists,  and  even 
incorrigible. 

Thus  it  is  clear  that  at  the  initial  moment  of  their 
criminal  career  they  ought  to  be  subjected  to  the 
measures  which  I  am  about  to  indicate  for  occasional 
criminals  ;  whereas,  when  from  occasional  they  have 
become,  partly  by  their  imprisonment,  habitual 
offenders,  they  must  be  subjected  to  the  measures 
already  indicated  for  born  criminals.  The  latter  are 
incorrigible  through  congenital  tendency  to  de- 
generate, and  the  former  are  incorrigible  through 
acquired  tendency  ;  but  they  end  in  the  same  degree 
of  anti-sociality  and  brutalisation.  There  is,  how- 
ever, this  difference,  that  habitual  offenders  nearly 
always  commit  less  serious  crimes,  such  as  theft, 
swindling,  forgery,  indecent  assault,  whilst  the  born 
criminals,  though  they  may  be  petty  thieves,  or  not 
very  formidable  swindlers,  are  more  frequently 
murderers,  footpads,  guilty  of  arson,  or  the  like. 
Thus  the  discipline  of  their  segregation  must  vary 
accordingly. 

For  occasional  criminals,  social  defence  must  have 
a  character  of  prevention  rather  than  of  repression, 
so  as  to  save  them  from  being  driven,  by  a  mistaken 
prison  organisation,  to  become  recidivists,  and  there- 
fore habitual  and  incorrigible  criminals. 

It  is  especially  important  in  this  category  to  dis- 
criminate  between   the   young   and   the   adults,   for 


268  CRIMINAL  SOCIOLOGY. 

with  the  former,  far  more  than  with  the  latter,  the 
preventive  methods  may  have  a  sensible  effect  in 
diminishing  crime.  But  we  must  take  care,  in  place 
of  the  pedantic  graduation  of  responsibility  which 
satisfies  the  penal  codes,  to  substitute  a  physiological 
and  psychical  treatment  of  children  and  young 
people,  who  are  actual  criminals  or  framing  for  crime. 
/  Beginning  with  the  physical  and  moral  treatment 
i^oi  foundling  children  as  one  of  the  most  effectual 
penal  substitutes,  and  advancing  to  reformatory  con- 
straint and  penal  sentences  upon  the  young,  there 
is  an  entire  system  crying  for  radical  reform,  from 
which  imprisonment  for  young  persons  should  always 
be  excluded.  We  must  therefore  abolish  the  so- 
called  houses  of  correction  ;  for,  taking  no  account 
of  the  absurd  and  dangerous  confusion  created  by 
the  three  classes  of  children  committed  for  paternal 
correction,  for  begging  and  vagrancy,  and  for  of- 
fences, no  good  can  ever  come  of  it,  for  the  herding 
and  crowding  together  are  nowhere  more  produc- 
tive of  fermentation  and  putrefaction  than  amongst 
the  young. 

There  is  nothing  for  them  but  separate  boarding- 
out  with  families  of  honest  country  folk,  or  else 
agricultural  colonies  with  a  discipline  different  from 
that  of  the  colonies  for  adult  criminals,  but  still 
based  on  the  rule  of  isolation  by  night,  work  in  the 
open  air,  and  as  little  crowding  as  possible. 

For  adult  occasional  criminals  it  is  unnecessary  to 
insist  any  further  on  the  absurdity  and  danger  of 
short  terms  of  imprisonment,  with  or  without  isola- 
tion   in    cells,    which    now    constitute    the    almost 


PRACTICAL   REFORMS.  26g 

exclusive  mode  of  repression.  A  few  days  in  prison, 
mostly  in  association  with  habitual  criminals,  cannot 
exercise  any  deterrent  influence,  especially  in  the 
grotesque  minimum  of  one  day,  or  three  days,  as 
provided  by  the  Dutch,  Italian,  and  other  codes. 
On  the  contrary,  they  are  attended  by  disastrous 
effects,  by  destroying  the  serious  character  of  justice, 
relieving  prisoners  of  all  fear  of  punishment,  and 
consequently  driving  them  .  to  relapse,  under  the 
influence  of  the  disgrace  already  suffered,  and  of 
the  corrupting  and  compromising  association  with 
habitual  criminals  in  prison. 

The  results  of  these  short  terms,  indeed,  which 
impose  about  the  same  restriction  of  liberty  as  an 
attack  of  indigestion,  or  a  heavy  fall  of  snow,  are  so 
manifest  that  the  objection  to  them  is  now  almost 
unanimous,  though  they  still  form  the  basis  of  the 
most  recent  penal  codes. 

As  to  the  substitution  of  other  repressive  methods 
in  the  many  cases  of  sentence  for  light  offences, 
theorists  and  legislators  have  proposed  domiciliary 
arrest,  sureties,  judicial  warnings,  compulsory  work 
without  imprisonment,  conditional  suspension  of  a 
sentence  or  a  punishment,  qualified  banishment. 
For  the  moment  there  is  a  marked  preference  for 
conditional  sentences. 

In  my  opinion,  however,  none  of  these  substitutes 
or  short  terms  of  imprisonment  can  be  applied  as 
effectively  or  as  generally  as  is  necessary  for  the  large 
class  of  occasional  offenders. 

Domiciliary  arrests,  indeed,  which  the  Italian  penal 
code  applies  only  to  women  and  minors  for  a  first 
19 


270  CRIMINAL  SOCIOLOGY, 

contravention  of  the  law,  with  detention  in  the  house, 
cannot  be  made  effective.  They  would  be  useless 
for  those  already  obliged  to  remain  at  home  by  their 
daily  occupations,  and  for  the  rich,  who  could  have 
any  form  of  distraction  in  their  own  houses  ;  and 
they  would  be  injurious  to  those  who  have  to  earn 
a  living  for  themselves  and  their  families  in  work- 
rooms, shops,  offices,  &c.  Moreover,  this  domiciliary 
detention  would  be  very  difficult  in  the  great  towns, 
where  it  would  probably  require  a  sentinel  for  every 
condemned  person. 

Bail  for  good  behaviour  is  too  unequal  in  the  case 
of  the  poor  and  the  rich,  and  therefore  too  rarely 
applicable  to  be  any  more  than  an  exceptional  and 
accessory  measure,  taken  in  conjunction  with  the 
payment  of  damages  ;  and  this  even  when  it  is  given 
by  sureties. 

Judicial  warning,  with  or  without  security,  which 
the  new  Italian  penal  code  has  sought  to  revive,  in 
spite  of  many  years'  experience  under  the  older 
codes,  cannot  be  seriously  treated.  Either  the 
prisoner  is  an  occasional  offender,  or  an  offender 
through  passion,  having  a  sense  of  honour,  in  which 
case  public  opinion  is  itself  a  sufficient  lesson  for 
him,  without  the  need  of  a  little  moral  lecture  from 
the  judge ;  or  else  he  has  no  such  moral  sensibility, 
and  then  the  warning  is  a  mere  useless  ceremony, 
without  effect  either  on  the  criminal  or  on  the  public. 
So  tru<i  is  this  that  judicial  warning  (a  different  thing 
from  police  warning,  which  is  another  so-called  pre- 
ventive measure,  both  ineffectual  and  injurious)  is 
rarely  applied  by  magistrates. 


PRACTICAL  REFORMS.  27I 

Compulsory  work  without  imprisonment  may  be 
admitted,  not  as  a  main  punishment,  but  as  a  mode 
of  enforcing  strict  reparation  of  damage,  which  I  still 
believe  to  be  the  only  suitable  measure  for  occasional 
offenders,  when  the  offence  is  slight. 

The  same  must  be  said  for  qualified  banishment 
(temporary  removal  from  the  place  where  the  crime 
was  committed),  which  may  be  added  as  a  preventive 
measure,  and  as  a  satisfaction  for  the  injured  party, 
in  the  same  cases  where  the  payment  of  damages  is 
the  principal  retribution. 

There  remains  the  conditional  sentence.  A  judge 
may  decide,  in  the  case  of  first  offenders  who  appear 
to  him  to  call  for  such  treatment,  that  the  sentence, 
or  the  execution  of  the  sentence,  shall  be  suspended 
for  a  given  period,  after  which,  if  the  offender  has 
been  of  good  behaviour,  and  has  not  committed 
another  offence,  the  sentence  is  effaced  and  the 
condemnation  is  regarded  as  non-existent ;  whilst  in 
the  other  case  the  sentence  takes  effect,  and  the 
punishment  is  added  to  that  of  the  new  crime. 

This  conditional  suspension,  however,  assumes  two 
very  different  forms. 

At  Boston,  in  the  State  of  Massachusetts,  from  the 
year  1870  in  the  case  of  minors,  and  from  1878  in 
the  case  of  adults,  judgment  is  suspended  without 
regard  even  to  the  gravity  of  the  crime  or  to  the 
antecedents  of  the  criminal ;  and  this  custom  has 
applied  to  the  entire  State  from  the  year  1880.  All 
that  the  judge  does  is  to  fix  the  period  of  probation. 
There  is  a  probation  officer  whose  business  it  is  to 
keep  his  eye  on  the  persons  affected,  and  who  has 


272  CRIMINAL   SOCIOLOGY. 

extensive  powers,  including  that  of  bringing  them 
up  for  sentence  even  for  disorderly  conduct,  without 
waiting  for  an  actual  relapse.  This  system  has  also  been 
introduced  into  New  Zealand  and  Australia  (1886). 

In  England,  after  the  advocacy  of  the  probation 
system  by  the  Howard  Association,  an  Act  was 
passed  in  1887  "  to  permit  the  conditional  Release  of 
first  Offenders  in  certain  cases,"  This  law  combines 
probation  with  sureties  for  good  conduct.  Judgment 
is  given,  but  sentence  is  not  pronounced.  The  sus- 
pension is  not  granted  to  any  one  who  has  previously 
committed  an  offence,  or  whose  first  offence  would  be 
liable  to  a  punishment  exceeding  two  years'  imprison- 
ment. There  is  no  probation  officer,  for  supervision 
is  replaced  by  personal  or  other  sureties  for  good 
behaviour. 

On  the  continent  of  Europe  another  form  has  been 
adopted.  There  is  no  supervision  by  a  special  officer, 
and  no  surety  for  good  behaviour ;  judgment  is 
delivered  and  sentence  pronounced  ;  and  the  suspen- 
sion is  not  forfeited  by  disorderly  conduct,  but  only 
by  an  actual  relapse. 

This  system,  so  far  as  the  purpose  was  not  effected 
by  various  conditions  as  to  the  duration  of  punish- 
ment, which  left  room  for  conditional  sentences,  as 
to  the  interval  for  taking  cognisance  of  relapse,  and 
other  details,  was  proposed  in  France  (1884)  by 
Senator  Berenger  ;  but  Belgium  was  the  first  country 
to  adopt  it  in  the  law  of  1888  "  on  conditional  release 
and  conditional  sentences;"  and  France  followed  in 
1891,  with  the  law  "  on  the  modification  and  increase 
of  punishments." 


PRACTICAL   REFORMS,  273 

Before  that  time,  at  the  Prison  Congresses  of 
London  (1872)  and  Rome  (1885),  there  had  been 
some  discussion,  without  resolutions,  on  the  advisa- 
bility of  substituting  for  punishment  with  hard  labour 
either  simple  detention  without  labour  or  compulsory- 
labour  without  imprisonment,  or  removal  from  the 
place  where  the  offence  was  committed,  or  judicial 
admonition. 

But  the  most  noteworthy  advocacy  of  conditional 
sentences,  after  the  action  taken  by  the  Howard 
Association  in  1881,  came  from  the  International 
Union  of  Penal  Legislation,  which  at  its  Conference 
at  Berne  in  1889  adopted  a  resolution  in  its  favour, 
whilst  insisting,  at  the  suggestion  of  M.  Garofalo, 
"  on  the  necessity  of  deciding  its  limitation  according 
to  local  conditions,  and  to  the  public  opinion  and 
moral  characteristics  of  various  nations." 

The  Prison  Congress  of  St.  Petersburg  discussed 
the  substitution  of  judicial  admonition  or  conditional 
sentences  for  short  terms  of  imprisonment  ;  but  no 
resolution  could  be  arrived  at  on  this  occasion,  and 
the  matter  was  postponed  to  the  next  international 
Prison  Congress  (Paris,  1895). 

In  Austria  and  Germany,  again,  several  Bills  have 
been  introduced,  dealing  with  conditional  sentences. 

There  are  statistics  for  Belgium  on  the  operation 
of  this  system.  The  law  of  1888  requires  the  keeper 
of  the  seals  to  report  annually  to  Parliament ;  and 
that  authority  drew  up  two  reports,  dated  May  14, 
1890,  and  July  7,  1891. 

From  the  day  when  the  law  came  into  operation 
up  to  December  31,  1889,  out  of  61,787  sentences  in 


274  CRIMINAL  SOCIOLOGY. 

the  Correctional  Tribunals,  8,696  were  conditional ; 
and  there  were  192  relapses.  Out  of  222,492  sen- 
tences in  the  Police  Courts,  4,499  were  conditional, 
and  there  were  45  relapses. 

These  13,195  conditional  sentences  included  8,485 
for  crimes  and  offences  under  the  penal  code ;  2,286 
for  breaches  of  police  regulations  ;  447  for  breaches 
of  communal  and  provincial  regulations  ;  and  1,977 
for  contraventions  of  special  laws. 

The  crimes  and  offences  for  which, these  sentences 
have  been  most  frequently  pronounced  are  as  follows:— 

Malicious  Wounding 

Thefts,  &c 

Resistance  to  and  attacks  on  Authorities 
Destruction  of  Inclosiires  and  Property  .. 

Swindling  and  Breach  of  Trust       

Slander  and  Defamation 

Immorality 

Offences  below  100  were  :  Abusive  language,  99 ; 
Indecent  assaults,  59;  Threats,  58;  Forgery,  49; 
Adultery,  48  ;  Adulteration  of  food,  44 ;  Unlawful 
wounding,  45  ;  Unlawful  possession,  31  ;  Unlawful 
carrying  and  sale  of  arms,  30 ;  Bankruptcy,  26 ; 
Accidental  homicide,  20. 

In  the  year  1890,  out  of  41,330  sentences  in  the 
Correctional  Tribunals,  whereof  36,660  were  not  over 
six  months'  imprisonment,  7,932  were  conditional, 
and  there  were  223  relapses.  Out  of  121,461  in  the 
Police  Courts,  6,377  were  conditional,  and  there  were 
49  relapses. 

The  proportion  for  various  offences  was  approxi- 
mately the  same  as  in  the  previous  year. 

These  figures,  it  is  true,  do  not  tell  us  much  about 


Correctional. 

Folic 

3.339 

..        491 

1,803 

206 

961 

..          67 

211 

...        56 

125 

5 

"3 

..        79 

112 

10 

PRACTICAL   REFORMS.  275 

the  effects  of  conditional  sentences  in  Belgium,  as  we 
might  expect  from  the  brevity  of  the  experiment ; 
so  that  the  question  still  remains  in  the  theoretical 
phase. 

The  statistics  of  the  Massachusetts  probation 
system  are  not  much  more  instructive. 

According  to  the  decennial  report  (1879-88)  of  Mr. 
Savage,  probation  officer  at  Boston,  imprisonment 
was  remitted  in  the  county  of  Suffolk  (including 
Boston)  to  322  persons  in  1879  and  to  880  in  1888  ; 
whilst  the  number  officially  recorded  for  the  following 
year  was  994.  In  the  course  of  ten  years  the  proba- 
tion officer  inquired  into  the  cases  of  27,052  persons 
liable  to  supervision.  Of  these,  7,251  were  put  on 
probation,  and  580  were  deprived  of  the  benefit  of 
the  law. 

The  grounds  on  which  the  probation  system  was 
applied  in  Massachusetts  were  strikingly  different 
from  the  circumstances  under  which  conditional 
sentences  were  recorded  in  Belgium.  Thus  in 
Boston  there  were  put  on  probation,  between  1879 
and  1888,  3,161  persons  charged  with  drunkenness 
for  the  first  time,  222  charged  with  habitual  drunken- 
ness, 211  with  drunkenness  for  the  third  time,  958 
with  theft,  764  with  solicitation,  470  with  inflicting 
bodily  harm,  274  with  disorderly  conduct  and  idle- 
ness, 240  with  violation  of  domicile,  especially  with 
intrusion  in  business  premises. 

Thus,  apart  from  the  difference  of  penal  legisla- 
tion and  social  life  in  the  two  countries,  the  Boston 
system  is  applied  mainly  to  drunkards,  who  are  not 
true  criminals  by  the  mere  fact  of  intoxication. 


276  CRIMINAL  SOCIOLOGY, 

As  for  the  statistics  of  ascertained  relapse,  which  in 
Boston  reached  64  out  of  1,125  (^  per  cent.)  in  1889, 
I  think  they  should  be  received  with  caution.  In  the 
case  of  every  new  penal  or  penitentiary  system  or 
measure,  we  never  fail  to  receive  more  or  less  wonder- 
ful figures  on  the  results  obtained  ;  but  the  common 
fate  of  all  these  splendid  results  has  always  been  that 
they  dwindle  down,  even  if  they  do  not  turn  into  a 
negative  quantity,  so  as  to  indicate  the  necessity  of 
other  moire  practical  and  serviceable  measures.  The 
reason  is,  and  will  continue  to  be  the  same,  namely, 
that  legislators,  judges,  and  prison  warders  have  no 
adequate  knowledge  of  criminals,  and  their  activity 
is  anything  but  harmonious.  This  accounts  for  the 
superficial  character,  if  nothing  more,  of  the  measures 
which  are  taken,  and  which  apply  far  more  to  the 
crime  than  to  the  criminal,  without  so  much  as 
touching  the  true  and  deep-seated  roots  of  crime. 
Hence  also  the  inevitable  disillusion,  almost  before 
the  new  device  is  a  month  old. 

I  by  no  means  admit  the  two  principal  objections 
of  MM.  Kirchenheim  and  Wach,  that  the  conditional 
sentence  is  repugnant  to  the  principle  of  absolute 
justice,  according  to  which  every  offence  should  be 
visited  by  a  corresponding  punishment,  and  that  short 
terms  of  imprisonment,  if  they  have  not  always  pro- 
duced a  good  result,  ought  not  to  be  abolished,  but 
only  applied  in  a  more  suitable  and  efficacious 
manner. 

The  first  objection  will  not  weigh  much  with  those 
who  are  guided  by  the  principles  and  method  of  the 
positive  school.     As  M.  Gautier  says,  it  is  absolutely 


PRACTICAL   REFORMS.  277 

useless  to  dispute  about  consequences  when  we  start 
from  premisses  so  opposed  to  each  other  as  retributive 
justice,  according  to  which  every  fault  demands  a  pro- 
portional punishment — "  fiat  justitia  pereat  mundus  " 
— and  social  defence,  according  to  which  a  justice 
without  social  advantage  is  an  unjust  justice,  afflicted 
with  metaphysical  degeneracy. 

The  second  objection  appears  to  me  to  have  no 
better  foundation,  for  the  disadvantages  of  punish- 
ments by  short  terms  of  imprisonment  are  organic 
and  inevitable  defects.  There  is  no  chance  of  their 
practical  amelioration,  for  they  have  all  been  tried, 
from  the  system  of  association  to  that  of  absolute 
isolation,  from  the  most  inflexible  vigour  to  the 
mildest  treatment.  Amelioration  of  short-term 
punishments  can  only  have  an  indirect  influence 
by  way  of  palliation  ;  but  it  is  the  actual  imprison- 
ment for  a  short  term  which  is  trifling  and  unavailing. 

At  the  same  time,  and  not  to  mention  other  objec- 
tions on  points  of  detail,  specially  applicable  to  the 
form  given  to  conditional  sentences  on  the  continent 
of  Europe,  as  compared  with  the  American  system, 
(which  is  certainly  better,  since  it  does  not  leave  the 
offender  to  himself,  and  is  not  restricted  to  the  simple 
legal  relapse),  I  am  not  enthusiastically  in  favour  of 
the  conditional  sentence.  And  my  lack  of  enthu- 
siasm, in  spite  of  the  first  impression,  which  was 
decidedly  favourable,  is  based  on  different  grounds 
from  those  hitherto  stated  by  the  opponents  of  this 
reform. 

In  the  earliest  edition  of  this  work  I  maintained 
that  repression  ought  to  be  mild  in  form  for  occa- 


278  CRIMINAL   SOCIOLOGY. 

sional  criminals,  and  progressively  severe  for  recidi- 
vists and  habitual  evildoers,  until  it  reached  perpetual 
segregation.  The  Italian  proverb,  that  "  the  first  fault 
is  pardoned  and  the  second  whipped,"  is  an  uncon- 
scious confirmation  of  the  popular  opinion.  And 
from  this  point  of  view  the  conditional  sentence,  if 
combined  as  in  the  French  law  with  progressive 
severity  of  repression  for  recidivists,  is  sufficiently 
attractive  in  the  first  instance. 

But  the  conditional  sentence,  to  consider  it  for  a 
moment  as  it  has  hitherto  been  propounded  and  car- 
ried out,  has  two  characteristic  defects,  in  common 
with  the  actual  penal  system,  of  which  its  advocates, 
for  the  most  part  balancing  between  the  classical 
and  positive  school,  cannot  get  ,rid. 

In  the  first  place,  whilst  the  classical  school  has 
fixed  its  attention  on  crime,  and  the  positive  school 
studies  the  criminal,  especially  in  regard  to  his 
biological  and  psychological  character,  the  advocates 
of  the  conditional  sentence  (and  of  the  laws  which 
have  so  far  brought  it  into  operation)  oscillate  be- 
tween the  two  standpoints,  considering  the  criminal, 
no  doubt,  rather  than  the  crime,  but  only  the  average 
and  abstract  criminal,  not  the  living  and  palpitating 
criminal,  as  he  is  to  be  found  in  his  several  categories. 
In  proof  of  this  it  is  enough  to  observe  that  the  ninth 
article  of  the  Belgian  law  admits  the  conditional 
sentence,  so  far  as  punishment  is  concerned,  when 
this  punishment  does  not  exceed  six  months,  even  if 
the  period  is  made  up  by  the  cumulation  of  two  or 
morel  In  other  words,  the  conditional  sentence  is 
allowed   in   the  case   of  a  criminal   who  has   com- 


PRACTICAL   REFORMS.  279 

mitted  several  (offences — which  substantially  (except 
in  the  few  cases  of  connected  offences  due  to  the 
same  action,  or  arising  out  of  the  same  occasion) 
is  a  mere  case  of  relapse,  and  therefore  proves  in  the 
majority  of  cases  that  the  law  is  not  dealing  with 
true  occasional  criminals ;  for  these,  as  a  rule,  like 
criminals  of  passion,  only  commit  a  single  crime  or 
offence. 

The  two  fundamental  conditions  of  the  conditional 
sentence  in  Europe  (a  slight  infraction  and  a  non- 
relapsed  criminal)  do  not,  therefore,  afford  a  complete 
guarantee  of  the  utility  of  its  application. 

It  is  true  that  this  system  tends  to  fix  the  attention 
of  the  judge  on  the  personal  conditions  of  the  prisoner, 
requiring  him  to  decide  if  the  conditional  sentence  is 
suitable  to  the  particular  occasion,  having  regard  to 
the  special  circumstances  of  the  action  and  the  indi- 
vidual, apart  from  the  legal  limitations  of  the  offence 
and  of  the  punishment. 

But  we  know  that  the  crowding  of  the  prisons 
with  persons  condemned  to  short  terms  of  imprison- 
ment is  attended  by  a  grievous  crowding  in  the  courts 
of  prisoners  accused  of  slight  offences  and  contraven- 
tions. Thus  it  is  inevitable  that  the  judges,  even 
apart  from  their  ignorance  of  the  biological  and  psy- 
chological characters  of  the  offenders,  being  compelled 
to  decide  ten  or  twenty  cases  every  day,  cannot  fix 
their  attention  on  the  procession  of  figures  which  files 
past  the  magic  lantern  of  the  courts,  but  simply  leave 
them  with  a  ticket  bearing  the  number  of  the  article 
which  applies,  not  to  i/iejn,  but  to  their  particular 
infraction  of  the  law.     Thus  the  judges  will  come  to 


28o  CRIMINAL  SOCIOLOGY, 

pronouncing  the  conditional  sentence  almost  mechani- 
cally, just  as  they  have  come  to  give  the  benefit  of 
attenuating  circumstances  by  force  of  habit.  This 
device  also  was  introduced  in  France  in  1832,  in 
order  to  "  individualise  punishment" — that  is  to  say, 
to  compel  the  judge  to  apply  his  sentence  rather 
to  the  criminal  than  to  the  crime. 

So  long  as  penal  procedure  is  not  radically  re- 
formed, as  we  have  proposed,  in  such  a  manner  that 
the  inquiry,  the  discussion,  the  decision  upon  the  evi- 
dence, which  are  the  only  proper  elements  of  penal 
justice,  aim  at  and  lead  up  to  the  determination  of  a 
prisoner's  biological  and  psychological  type,  it  will  be 
humanly  impossible  for  the  practical  application  of 
these  judicial  measures  to  overcome  the  mechanical 
impersonality  of  justice,  which  applies  rather  to  the 
crime  than  to  the  criminal. 

Hence  the  conditional  sentence,  though  it  was 
evolved  by  the  abuse  and  disastrous  effects  of  short 
terms  of  imprisonment,  and  in  spite  of  its  generating 
principle  that  "  the  first  fault  is  pardoned  and  the 
second  whipped,"  has  to-day  only  the  character  of  an 
eclectic  graft  on  the  old  classic  stock  of  penal  law  and 
procedure.  As  such,  notwithstanding  its  attractive 
features  (for  it  indicates  a  step  in  advance  towards 
the  positive  system  of  social  defence,  which  desires 
to  see  the  application  of  collective  defence  to  the 
individual's  power  of  offence),  it  seems  to  me  to  be 
destined,  not  long  after  its  earliest  application,  to 
deceive  the  anticipations  of  happy  and  beneficent 
results,  such  as  its  advocates  entertain. 

Moreover,  the  conditional  sentence,*  precisely  be- 


PRACTICAL   REFORMS.  281 

cause  it  is  a  graft  on  the  old  classic  stock  of  penal 
justice,  has  another  very  serious  defect,  inasmuch  as 
it  overlooks  the  victims  of  the  offence. 

Its  advocates,  in  fact,  continue  to  maintain  that 
reparation  of  damage  is  a  private  concern,  for  which 
they  benevolently  recommend  a  strict  remedy,  but 
which  they  nevertheless,  in  practice,  entirely  over- 
look. 

The  offender  who  is  conditionally  sentenced  is, 
therefore,  to  secure  a  suspension  of  punishment — 
which,  indeed,  it  is  as  well  to  remember,  he  also 
secures,  often  enough,  by  a  legal  limitation,  or,  as  in 
Italy,  by  the  remission  of  punishments  under  three 
months,  accorded  whenever  (as  is  generally  the  case) 
there  is  a  petition  for  pardon.  But  is  there  any  one 
who  gives  a  thought  to  the  victims  ^ 

From  this  point  of  view  it  may  even  be  said  that 
the  conditional  sentence  makes  things  worse  than 
before ;  for  the  victims  are  not  to  have  so  much  as 
the  satisfaction  of  seeing  punishment  inflicted  on 
those  who  have  injured  them,  in  cases  of  assault, 
theft,  swindling,  and  the  like.  And  it  is  useless  to 
make  the  platonic  remark,  as  M.  Payer  has  done,  that 
punishment  is  punishment  even  when  conditional, 
and  involves  the  censure  of  the  public  authority,  and 
holds  in  reserve  a  punishment  for  relapse,  and  hangs 
over  the  head  of  the  offender  until  his  term  of  proba- 
tion has  expired. 

All  this  is  pretty  enough — except  the  relapse,  which 
implies  the  poor  consolation  of  a  repetition  of  the 
offence,  which  would  be  no  great  satisfaction  for  the 
victims  of  the  first.     But  it  is  all  hypothetical  and 


282  CRIMINAL  SOCIOLOGY. 

theoretical.  The  essential  thing,  so  far  as  the  victims 
are  concerned,  is  that  the  offender  goes  unpunished. 

It  is  true  that  occasional  offenders  deserve  con- 
sideration, from  the  point  of  view  of  prevention  in 
particular;  but  honest  folk  who  are  injured  by  them 
deserve  it  still  more, 

I  do  not  therefore  agree  with  Garofalo,  who  pro- 
posed at  Brussels  that  the  conditional  sentence  should 
be  subject  to  the  consent  of  the  injured  party  ;  but  I 
think  that  it  ought  not  to  be  permitted  until  there 
has  been  an  indemnification  for  the  victims  of  the 
offence,  or  at  least  a  guarantee,  either  by  the  offender, 
or  directly  by  the  State. 

In  short,  for  occasional  criminals  who  commit  slight 
offences,  in  circumstances  which  show  that  they  are 
not  of  a  dangerous  type,  I  say,  as  I  have  said  already, 
that  reparation  of  the  damage  inflicted  would  suffice 
as  a  defensive  measure,  without  a  conditional  sentence 
of  imprisonment. 

As  to  the  occasional  criminals  who  commit  serious 
offences,  for  which  reparation  alone  would  not  be  suffi- 
cient, temporary  removal  from  the  scene  of  the  crime 
should  be  added  in  the  less  serious  cases,  whilst  in 
the  cases  of  greater  gravity,  owing  to  material  and 
personal  considerations,  there  should  be  indefinite 
segregation  in  an  agricultural  colony,  with  lighter 
work  and  milder  discipline  than  those  prescribed  in 
colonies  for  born  criminals  and  recidivists. 

The  last  category  is  that  of  criminals  through  an 
impulse  of  passion,  not  anti-social  but  susceptible  of 
excuse,  such  as  love,  honour,  and  the  like. 


PRACTICAL  REFORMS.  283 

For  these  individuals  all  punishment  is  clearly  use- 
less, at  any  rate  as  a  psychological  counteraction  of 
crime,  for  the  very  conditions  of  the  psychological 
convulsion  which  caused  them  to  offend  precludes 
any  deterrent  influence  in  a  legal  menace. 

I  therefore  believe  that  in  typical  cases  of  criminals 
of  passion,  where  there  is  no  clear  demand  for  mental 
treatment  in  a  criminal  lunatic  asylum,  imprisonment 
is  of  no  use  whatever.  Strict  reparation  of  damage 
will  suffice  to  punish  them,  whilst  they  are  punished 
already  by  genuine  and  sincere  remorse  immediately 
after  the  criminal  explosion  of  their  legitimate  passion. 
Temporary  removal  from  the  scene  of  their  crime  and 
from  the  residence  of  the  victim's  family  might  be 
superadded. 

Nevertheless  it  must  not  be  forgotten  that  I  say 
this  in  connection  with  criminals  in  whom  the  pas- 
sionate impulse  is  really  exceptional,  and  who  present 
the  physiological  and  psychical  features  of  the  genuine 
criminal  of  passion  which  I  enumerated  in  the  first 
chapter. 

I  come  to  a  different  conclusion  in  the  case  of 
criminals  who  have  merely  been  provoked,  who  do 
not  completely  present  these  features,  who  are  actu- 
ated by  a  combination  of  social  and  excusable  passion 
with  an  anti- social  passion,  such  as  hate,  vengeance, 
anger,  ambition,  &c.  Of  such  a  kind  are  murderers 
carried  away  by  anger  just  in  itself,  by  blood-feuds, 
or  desire  to  avenge  the  honour  of  their  family,  by 
vindication  of  personal  honour,  by  grave  suspicion  of 
adultery,  &c. ;  persons  guilty  of  malicious  wounding, 
disfigurement  through  erotic  motives,  and  the  like. 


284  CRIMINAL   SOCIOLOGY. 

These  may  be  classed  as  occasional  criminals,  and 
treated  accordingly- 
Such,  then,  in  general  outline,  is  the  positive  system 
of  social,  preventive,  and  repressive  defence  against 
crimes  and  criminals,  in  accordance  with  the  infer- 
ences from  a  scientific  study  of  crime  as  a  natural 
and  social  phenomenon. 

It  is  a  defensive  system  which,  in  the  nature  of 
things,  must  of  necessity  be  substituted  for  the 
criminal  and  penitentiary  systems  of  the  classical 
school,  so  soon  as  the  daily  experience  of  every 
natioYi  shall  have  established  the  conviction,  which 
at  this  moment  is  more  or  less  profound,  but  merely 
of  a  general  character,  that  these  systems  are  hence- 
forth incompatible  with  the  needs  of  society,  not  only 
by  their  crude  pedantry,  but  also  because  their  conse- 
quences are  becoming  daily  more  disastrous. 


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